Daniel Doubek v. Joshua Kaul

2022 WI 31SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP704
COMPLETE TITLE: Daniel Doubek,
Petitioner-Appellant,
v.
Joshua Kaul,
Respondent-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: May 20, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 9, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Kendall M. Kelley
JUSTICES:
HAGEDORN, J., delivered the majority opinion for a unanimous
court. KAROFSKY, J., filed a concurring opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the Petitioner-Appellant there were briefs filed by
John R. Monroe and John Monroe Law, P.C. There was an oral
argument by John R. Monroe.
For the respondent-respondent, there was a brief filed by
Brian P. Keenan, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Brian P. Keenan.
2022 WI 31NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP704
(L.C. No. 2019CV1350)
STATE OF WISCONSIN : IN SUPREME COURT
Daniel Doubek,
Petitioner-Appellant,
FILED
v. MAY 20, 2022
Joshua Kaul, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Respondent.
HAGEDORN, J., delivered the majority opinion for a unanimous
Court. KAROFSKY, J., filed a concurring opinion.
APPEAL from a judgment and an order of the Circuit Court
for Brown County, Kendall M. Kelley, Judge. Reversed and cause
remanded.
¶1 BRIAN HAGEDORN, J. Wisconsin law provides that an
individual who is prohibited from possessing a firearm under
federal law may not hold a license to carry a concealed weapon
(CCW license). Federal law, in turn, prohibits firearm
possession for anyone who has been convicted of a "misdemeanor
crime of domestic violence" under state or federal law. In this
case, we address whether a conviction for disorderly conduct
No. 2020AP704
under Wis. Stat. § 947.01(1) (2019-20)1 qualifies as a
misdemeanor crime of domestic violence. We hold that disorderly
conduct is not a misdemeanor crime of domestic violence under
federal law, and therefore does not disqualify a person from
holding a CCW license.
I. BACKGROUND
¶2 In 1993, Daniel Doubek broke into his estranged wife's
trailer waving a 2x4 and shouting threats. He was convicted of
disorderly conduct in violation of Wis. Stat. § 947.01(1)——a
misdemeanor offense.2 More than two decades later, in 2016,
Doubek applied for and received a CCW license from the
Department of Justice (DOJ). In 2019, DOJ conducted an audit
and determined that Doubek was prohibited from possessing a CCW
license based on his 1993 misdemeanor conviction. According to
DOJ, Doubek's conviction constituted a disqualifying
"misdemeanor crime of domestic violence" under federal law. See
18 U.S.C. § 922(g)(9). DOJ revoked Doubek's CCW license and
sent a letter notifying him of its decision. Doubek petitioned
for judicial review pursuant to Wis. Stat. § 175.60(14m). The
All subsequent references to the Wisconsin Statutes are to
1
the 2019-20 version unless otherwise indicated.
When Doubek was convicted, disorderly conduct was defined
2
at Wis. Stat. § 947.01 (1991-92). The crime has since been
renumbered to Wis. Stat. § 947.01(1) but remains otherwise
identical to the prior version. See 2011 Wis. Act 35, § 85. We
therefore cite to the 2019-20 version of the statute throughout
this opinion.
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No. 2020AP704
circuit court upheld DOJ's revocation of Doubek's CCW license.3
The court of appeals certified the case to us, and we accepted
the certification.4
II. DISCUSSION
¶3 When DOJ revokes a CCW license, a reviewing court
"shall reverse" if, among other reasons, DOJ "erroneously
interpreted a provision of law and a correct interpretation
compels a different action." Wis. Stat. § 175.60(14m)(f). We
consider whether Doubek's revocation was consistent with
§ 175.60, the statute governing CCW licensing. That statute
incorporates a federal firearms prohibition, which in turn
relies on state penal law. Our interpretation of these statutes
presents a question of law we review independently. Serv. Emps.
Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946
N.W.2d 35. In interpreting federal statutes, we are bound by
the United States Supreme Court's interpretation. James v. City
of Boise, 577 U.S. 306, 307 (2016) (per curiam).
3 The Honorable Kendall M. Kelley of the Brown County
Circuit Court presided.
4 The court of appeals certified the following question:
Are Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844
N.W.2d 403, and Leonard v. State, 2015 WI App 57, 364
Wis. 2d 491, 868 N.W.2d 186, "good law" in light of
the United States Supreme Court's decision in United
States v. Castleman, 572 U.S. 157 (2014)?
As explained below, we overrule Evans. We decline to address
Leonard, however, because it is unnecessary to resolve Doubek's
petition.
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No. 2020AP704
A. CCW Licensing
¶4 CCW licensing in Wisconsin is regulated in large part
though Wis. Stat. § 175.60. Among other things, this section
governs when a CCW license shall or shall not issue, what an
applicant must do to qualify for a license, when a licensee is
authorized to carry a concealed weapon, and the processes DOJ
must follow in administering the CCW program. Relevant here,
§ 175.60(3)(b) provides that DOJ may not issue a license to an
individual that "is prohibited under federal law from possessing
a firearm that has been transported in interstate or foreign
commerce." And, if a prohibited individual holds a license
despite that prohibition, § 175.60(14)(a) directs that DOJ
"shall revoke a license issued under this section if the
department determines that sub. (3)(b) . . . applies to the
licensee." Taken together, these provisions direct DOJ to deny
or revoke a CCW license anytime federal law bars the would-be
licensee from possessing a firearm.
B. Federal Misdemeanor Crime of Domestic Violence Prohibition
¶5 In this case, that federal law is 18 U.S.C.
§ 922(g)(9), which prohibits anyone convicted of a "misdemeanor
crime of domestic violence" from possessing a firearm.5 A
5 In relevant part, 18 U.S.C. § 922(g) provides:
It shall be unlawful for any person . . .
(9) who has been convicted in any court of a
misdemeanor crime of domestic violence, to ship or
4
No. 2020AP704
"misdemeanor crime of domestic violence" is not itself a
standalone crime. Rather it refers to a class of crimes as
defined one section earlier:
[T]he term "misdemeanor crime of domestic violence"
means an offense that——
(i) is a misdemeanor under Federal, State, or Tribal
law; and
(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or
guardian of the victim.
18 U.S.C. § 921(a)(33)(A).
¶6 Doubek's crime was a misdemeanor under Wisconsin law,
satisfying clause (i) of 18 U.S.C. § 921(a)(33)(A). Clause (ii)
includes two criteria. United States v. Hayes, 555 U.S. 415,
421 (2009). First, the misdemeanor must "in fact" have been
committed by someone who had a specified, domestic relationship
with the victim. Id. This criterion depends on the facts
underlying the conviction, not the elements of the charged
misdemeanor. Id. at 426. The victim of Doubek's crime was his
wife, and thus, the first criterion is undisputed. Our focus is
therefore on the second criterion of clause (ii).
transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.
5
No. 2020AP704
¶7 The second criterion requires that the misdemeanor
have "as an element, the use or attempted use of physical force,
or the threatened use of a deadly weapon." 18 U.S.C.
§ 921(a)(33)(A)(ii). 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.
¶8 Sometimes the task of comparing elements is
complicated by the use of a list in the statute defining the
relevant misdemeanor. When that happens, the United States
Supreme Court instructs us to determine whether the statute is
indivisible or divisible, and then analyze whether the relevant
elements match the applicable federal law. Id. at 504-06.
¶9 An indivisible statute "sets out a single (or
'indivisible') set of elements to define a single crime."
Id. at 504-05. When an indivisible statute contains a list of
alternatives, it "enumerates various factual means of committing
6
No. 2020AP704
a single element." Id. at 506. Thus, a "jury could convict
even if some jurors" thought the conduct satisfied one of the
listed factual means while others concluded it satisfied
another, "so long as all agreed" the conduct met one or more of
the enumerated factual means. Id. Because an indivisible
statute defines only one crime, no recourse to case records is
needed to determine what type of conduct gave rise to the
conviction. A court simply "lines up that crime's elements
alongside those of the [federal law] and sees if they match."
Id. at 505. This is the standard application of the categorical
approach. Id. at 504-05.
¶10 Divisible statutes, on the other hand, "list elements
in the alternative, and thereby define multiple crimes." Id. at
505. When faced with a divisible statute, courts use a
"modified categorical approach" and look "to a limited class of
documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what
elements, a defendant was convicted of." Id. at 505-06. The
court then compares that specific crime to the relevant federal
statute to see if they match. Id. at 506.
¶11 In this case, to determine whether Doubek's prior
conviction constituted a misdemeanor crime of domestic violence,
we must analyze whether the statute he was convicted under is
indivisible or divisible.
7
No. 2020AP704
C. Wisconsin's Disorderly Conduct Statute
¶12 Doubek's prior conviction was for disorderly conduct
under Wis. Stat. § 947.01(1). Doubek argues disorderly conduct
does not have as a necessary element of the crime the actual or
attempted use of physical force or the threatened use of a
deadly weapon. He is correct.
¶13 Wisconsin's disorderly conduct statute provides:
Whoever, in a public or private place, engages in
violent, abusive, indecent, profane, boisterous,
unreasonably loud or otherwise disorderly conduct
under circumstances in which the conduct tends to
cause or provoke a disturbance is guilty of a Class B
misdemeanor.
Wis. Stat. § 947.01(1). Under this language, a person is guilty
of this misdemeanor if: (1) the defendant engaged "in violent,
abusive, indecent, profane, boisterous, unreasonably loud or
otherwise disorderly conduct," (2) under circumstances that tend
"to cause or provoke a disturbance." Id.; see also State v.
Breitzman, 2017 WI 100, ¶57, 378 Wis. 2d 431, 904 N.W.2d 93.
¶14 The key interpretive question is whether "violent" and
"boisterous" conduct, for example, are simply alternative
factual circumstances that satisfy one of the two elements of
disorderly conduct, or whether violent disorderly conduct is a
different crime than boisterous disorderly conduct. Resting on
a plain reading of the statute, we conclude Wisconsin's
disorderly conduct statute is indivisible, and enumerates
different means of committing the same crime. The language of
Wis. Stat. § 947.01(1) is most naturally read as creating a
single crime of disorderly conduct, while listing alternative
8
No. 2020AP704
means to satisfy its first element. The focus of the list is
any type of conduct that is disorderly. This is particularly
seen by the inclusion of a general catchall term at the end:
"violent, abusive, indecent, profane, boisterous, unreasonably
loud or otherwise disorderly conduct." § 947.01(1) (emphasis
added). This phrasing suggests the first six types of conduct
listed are examples of conduct that qualify as disorderly, not
alternative elements establishing distinct crimes. Were it
otherwise, the statute would create a crime of "otherwise
disorderly conduct"——a crime that would not make much sense
since it would necessarily include the six types of conduct that
come before. Nothing in the grammar or structure of the list
separates the listed behaviors in a way that would suggest it
codifies seven different crimes. The most straightforward
understanding of § 947.01(1)'s text is that it provides a non-
exhaustive list of means by which the single crime of disorderly
conduct may be committed.
¶15 This understanding of the statute is in harmony with
how it has long been interpreted. Our cases have consistently
described disorderly conduct as having "two elements"——the
"first element being that the defendants engaged in disorderly
conduct, and the second element being that such conduct tended
to cause or provoke a disturbance." State v. Zwicker, 41
Wis. 2d 497, 514, 164 N.W.2d 512 (1969); see also Breitzman, 378
Wis. 2d 431, ¶57. It would be a marked departure to read
§ 947.01(1) as creating seven different crimes.
9
No. 2020AP704
¶16 The jury instructions are in accord. They describe
disorderly conduct as a single "offense" with "two elements."
Wis. JI——Criminal 1900, at 1 (2018). An included note likewise
describes the various types of conduct as means to prove a
single offense: "The Committee recommends selecting one of the
terms [from the list] where possible, but believes it is proper
to instruct on all alternatives that are supported by the
evidence." Id. at 4. Nowhere do the jury instructions suggest
there are seven separate disorderly conduct crimes, or that each
version may be charged separately.
¶17 Finally, this appears to be how the statute has been
applied in day-to-day practice as well. In this case, for
example, Doubek's 1993 conviction was for "violent, abusive and
otherwise disorderly conduct." Yet, Doubek was charged and
convicted of only one count of disorderly conduct, not three.
Other cases reveal the same pattern. See, e.g., Leonard v.
State, 2015 WI App 57, ¶22, 364 Wis. 2d 491, 868 N.W.2d 186(same); Evans v. Wis. Dept. of Just., 2014 WI App 31, ¶12 n.3,
353 Wis. 2d 289, 844 N.W.2d 403 (same).
¶18 In Evans, however, the court of appeals addressed the
divisibility of the disorderly conduct statute in the same
context and reached a different conclusion. It held that the
violent conduct component of a disorderly conduct conviction
under Wis. Stat. § 947.01(1) could constitute a separate element
of the crime, depending on how it was charged. 353 Wis. 2d 289,
¶¶8-20. Evans is not consistent with the analytical framework
clarified in recent United States Supreme Court cases and
10
No. 2020AP704
described above. We conclude Evans must be overruled;
§ 947.01(1) is an indivisible statute subject to the standard
categorical approach. See State v. Yakich, 2022 WI 8, ¶31, 400
Wis. 2d 549, 970 N.W.2d 12 ("[W]e are not bound by court of
appeals decisions. As the state's highest court, we interpret
legal questions independently.").
D. Application
¶19 Turning to Doubek's petition, we start from our
conclusion that Wis. Stat. § 947.01(1) is indivisible, defining
only one crime. Therefore, by way of reminder, we look to the
two elements of § 947.01(1)——and not to the facts of Doubek's
particular conviction——to determine if it is a "misdemeanor
crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A).
Recall that a crime qualifies as a misdemeanor crime of domestic
violence only if it "has, as an element, the use or attempted
use of physical force, or the threatened use of a deadly
weapon." 18 U.S.C. § 921(a)(33)(A)(ii). And under § 947.01(1),
a person is guilty of disorderly conduct if: (1) the defendant
engaged "in violent, abusive, indecent, profane, boisterous,
unreasonably loud or otherwise disorderly conduct," (2) under
circumstances that tend "to cause or provoke a disturbance."
¶20 While one could be convicted of disorderly conduct for
conduct involving the use or attempted use of physical force or
the threatened use of a deadly weapon, the statute does not make
such conduct an element of the crime that must always be proven.
A person may be convicted of disorderly conduct for all kinds of
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No. 2020AP704
conduct that does not involve the use or attempted physical
force or threatened use of a deadly weapon——for example, profane
or unreasonably loud behavior. Wis. Stat. § 947.01(1); see also
State v. Douglas D., 2001 WI 47, ¶3, 243 Wis. 2d 204, 626
N.W.2d 725 (holding that written speech can satisfy the elements
of disorderly conduct). In short, the crime of disorderly
conduct defined in § 947.01(1) is a single indivisible crime
that 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. It is therefore not a misdemeanor crime of domestic
violence under federal law.
¶21 Accordingly, DOJ revoked Doubek's CCW license on the
basis of an erroneous interpretation of law. We therefore
reverse the circuit court's decision affirming DOJ's action.
See Wis. Stat. § 175.60(14m)(f)2. (directing that a court "shall
reverse" if DOJ "erroneously interpreted a provision of law and
a correct interpretation compels a different action").6
III. CONCLUSION
¶22 DOJ improperly revoked Doubek's CCW license based on
its incorrect view that Doubek was prohibited from possessing
6Doubek makes two additional arguments. First, he
maintains that "violent" disorderly conduct does not necessarily
involve physical force against a person. Second, he argues for
reversal based on his claim that DOJ failed to file a timely
answer pursuant to Wis. Stat. § 175.60(14m)(d). Because we
reverse on other grounds, we do not reach these issues.
12
No. 2020AP704
firearms under federal law. We reverse the circuit court's
decision affirming the revocation and remand to the circuit
court to provide Doubek the appropriate relief. See Wis. Stat.
§ 175.60(14m)(g).
By the Court.——The judgment and order of the circuit court
is reversed and the cause remanded.
13
No. 2020AP704.jjk
¶23 JILL J. KAROFSKY, J. (concurring). Late in the
evening on August 21, 1993, Doubek's estranged wife was in her
home alone with their four-year-old daughter. While talking
with her sister on the phone, the line suddenly went dead.
Minutes later, Doubek broke through the front door, punching a
hole in the glass so he could unlock it from the inside.
Without his wife's permission, Doubek entered her home armed
with a 2x4 slab of lumber. Raising the 2x4 above his head, he
told his wife she "was dead." She asked her husband to leave
and then went to the door, yelling out to her neighbors for
help. Doubek threatened that if she did not move away from the
door, he would "let her have it." The two eventually went
outside to avoid waking their young daughter. Once outside,
Doubek told his wife he did not care what would happen to him if
he killed her, even if it meant he lost custody of their
daughter. About 30 minutes later, Doubek left.
¶24 Based on these facts, Doubek was found guilty of
disorderly conduct, a criminal misdemeanor.1 And here, that
misdemeanor qualifies as an act of domestic abuse under
Wisconsin law because it involved: (1) a physical act——Doubek
raising a 2x4 above his head while telling his wife she "was
dead" and that he'd "let her have it"; (2) against his wife; and
(3) that may have caused her to reasonably fear imminent
Wis. Stat. § 947.01(1) ("Whoever, in a public or private
1
place, engages in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct
under circumstances in which the conduct tends to cause or
provoke a disturbance is guilty of a Class B misdemeanor.").
1
No. 2020AP704.jjk
intentional infliction of physical pain or injury.2 Yet, despite
Doubek's conviction for a misdemeanor crime that constituted
domestic violence, the majority opinion is correct: under
federal law, his conviction is not a "misdemeanor crime of
domestic violence." See 18 U.S.C. § 921(a)(33). Consequently,
Doubek may continue to possess and conceal a firearm on his
person.
¶25 Though legally correct, this result is as nonsensical
as it is dangerous. In the realm of domestic violence, threats
to kill, like the one Doubek made to his wife, more than double
the risk of femicide.3 So while threats may not constitute
"violence" in the generic sense,
an act of this nature is easy to describe as "domestic
violence," when the accumulation of such acts over
time can subject one intimate partner to the other's
control. If a seemingly minor act like this draws the
attention of authorities and leads to a successful
prosecution for a misdemeanor offense, it does not
offend common sense or the English language to
characterize the resulting conviction as a
"misdemeanor crime of domestic violence."
United States v. Castleman, 572 U.S. 157, 166 (2014).
2 "Domestic abuse" is defined, in part, as a "physical act"
"engaged in by an adult person against his . . . spouse" that
"may cause the other person reasonably to fear imminent
engagement in," among other things, the "[i]nentional infliction
of physical pain [or] physical injury." Wis. Stat.
§ 968.075(1)(a). This opinion uses "domestic abuse" and
"domestic violence" interchangeably.
3 Jacquelyn C. Campbell et al., Risk Factors for Femicide in
Abusive Relationships, 93 Am. J. of Pub. Health 1089 (2003).
This opinion refers to the victim as female and the perpetrator
as male at times because those are the facts of this case and,
at other times, because that is consistent with the research
being cited. I recognize, of course, that those gender
assignments do not account for all acts of domestic abuse.
2
No. 2020AP704.jjk
¶26 And 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. The numbers are staggering. A domestic abuse
victim is five times more likely to be killed by her abuser when
the abuser has access to a gun.4 Every month in this country an
average of 70 women lose their lives to a domestic abuse
perpetrator using a gun.5 Over half of all male-perpetrated
femicides related to domestic abuse are the result of a firearm.6
What's more, an abuser's access to a gun increases the risk that
a domestic homicide will claim the lives of multiple victims.7
And even where no homicide occurs, a gun provides an abuser
additional means to coerce, threaten, or terrorize a domestic
abuse victim.8 As the United States Supreme Court aptly
summarized, "[f]irearms and domestic strife are a potentially
4 Campbell, supra note 3.
5 https://everytownresearch.org/report/guns-and-violence-
against-women-americas-uniquely-lethal-intimate-partner-violence
-problem/ (analyzing annual data collected by the Centers for
Disease Control and Prevention's National Violent Death
Reporting System through 2019).
6 Emiko Petrosky et al., Ctrs. Disease Control & Prevention,
Differences in Homicides of Adult Women and the Role of Intimate
Partner Violence——United States, 2003–2014, 66 Morbidity &
Mortality Wkly. Rep. 741 (2017).
7 Aaron J. Kivisto & Megan Porter, Firearm Use Increases
Risk of Multiple Victims in Domestic Homicides, 48 J. Am. Acad.
Psychiatry & L. 26 (2020).
8 Susan B. Sorenson & Rebecca A. Schut, Non-Fatal Gun Use in
Intimate Partner Violence: A Systematic Review of the
Literature, 19 Trauma Violence Abuse 431 (2018).
3
No. 2020AP704.jjk
deadly combination." United States v. Hayes, 555 U.S. 415, 427
(2009).
¶27 Recognizing this deadly combination, Congress enacted
a firearm ban on domestic violence misdemeanants to address a
"dangerous loophole" in which domestic abusers avoided losing
their access to guns because often prosecutors did not charge,
much less convict, such abusers as felons——a status that
generally would dispossess them. See id. at 426-427 (citing 142
Cong. Rec. 22985–86 (1996)); see also, e.g., Wis. Stat.
§ 941.29(1m) (criminalizing firearm possession by one "convicted
of a felony," but not for one convicted of a misdemeanor).
¶28 Cases like this show the loophole is still open and
dangerously so.9 Closing it, though, requires legislative——
rather than judicial——action. Legislative action that would
address conduct like Doubek's could take several forms; I
outline three examples here. First, the Wisconsin legislature
could enact a threatened-battery criminal statute that included
While Wisconsin and federal law both ban gun possession by
9
persons subject to domestic abuse restraining orders or
injunctions, there are at least two reasons to believe such
orders alone are insufficient to close the loophole. First,
these orders are time limited. See Wis. Stat. § 813.12(3)(c) &
(4)(c)-(d). Second, the percentage of abuse victims who obtain
protective orders is startlingly low. See Patricia Tjaden &
Nancy Thoennes, U.S. Dep't of Just., Extent, Nature, and
Consequences of Intimate Partner Violence 52 (2000); Ctrs. For
Disease Control & Prevention, Use of Medical Care, Police
Assistance, and Restraining Orders by Women Reporting Intimate
Partner Violence——Massachusetts, 1996-1997, 49 Morbidity &
Mortality Wkly. Rep. 485 (2000).
4
No. 2020AP704.jjk
an element of "threatened use of a deadly weapon."10 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,"11 making it a stand-alone crime as many states
have done.12 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.
If a court determined those facts did constitute an act of
domestic violence, then the court could disqualify an abuser
from possessing a gun under a new § 941.29(1m) category. Cf.
Generally speaking, a threatened-battery assault statute
10
makes unlawful any threating conduct that causes the victim to
fear imminent bodily harm. See, e.g., Model Penal Code
§ 211.1(1)(c) (Am. L. Inst. 2021) (making it a misdemeanor to
"attempt[] by physical menace to put another in fear of imminent
serious bodily injury"); N.J. Rev. Stat § 2c:12-1a.(3) (2021).
But to trigger 18 U.S.C. § 921(a)(33), such a statute must
include an explicit, divisible crime for "the threatened use of
a deadly weapon." See United States v. Daniels, 316
F. Supp. 3d 949 (N.D. Tex. 2018); Frazier v. N. State Prison,
Dept. of Corr., 921 A.2d 479 (N.J. App. Div. 2007).
11 See Wis. Stat. §§ 813.12(1)(am) & 968.075(1)(a).
See Thompson Reuters, Domestic Violence, 50 State
12
Surveys: Criminal Law: Crimes (Oct. 2021) (noting that about
half of the U.S. jurisdictions contain criminal statutes
specifically outlawing the act of domestic violence); see also
Nat'l Conf. of State Legislatures, Domestic Violence/Domestic
Abuse Definitions and Relationships (Jun. 13, 2019)
("Approximately 38 states place domestic violence definitions
and penalties within the criminal code . . . .").
5
No. 2020AP704.jjk
Wis. Stat. §§ 941.29(1m)(e) & 51.20(13)(cv) (barring a person
determined in a civil proceeding to be mentally ill and
dangerous from possessing a firearm).13
¶29 The bottom line is that while the majority opinion
correctly applies current federal law and reaches the conclusion
it dictates, as nonsensical and dangerous as it is, the
judiciary must follow that law; only the legislature may close
this dangerous loophole. For these reasons, I respectfully
concur.
I raise these purely as illustrations and without any
13
guarantees of or passing judgment on the constitutionality of
any such laws. See generally State v. Roundtree, 2021 WI 1, 395
Wis. 2d 94, 952 N.W.2d 765.
6