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  • WisBar News
    February 27, 2014

    Disorderly Conduct Conviction Bars Concealed Carry Permit

    holstered handgunFeb. 27, 2014 – A state appeals court has sided with the Wisconsin Department of Justice to deny a man’s application to carry a concealed weapon because the applicant was previously convicted for disorderly conduct involving domestic violence.

    Under federal law, a person who has been convicted of a “misdemeanor crime of domestic violence” is prohibited from carrying a concealed weapon.

    A “misdemeanor crime of domestic violence” means any misdemeanor under state, federal, or tribal law in which use or attempted use of physical force is an element of the crime and is committed by someone in a domestic relationship with the victim.

    Robert Evans Jr. was convicted for disorderly conduct in 2002. He pleaded guilty after admitting that he pushed his 36-year-old stepdaughter. The criminal complaint alleged other facts that Evans did not admit, such as punching the victim. In his plea, though, Evans accepted that he engaged in “violent, abusive, and otherwise disorderly conduct.”

    The Department of Justice determined that the 2002 offense constituted a misdemeanor crime of domestic violence. Thus, the department denied Evans’ application, concluding that allowing him to carry a concealed weapon would violate federal law.

    The circuit court upheld that determination, and a three-judge appeals court panel affirmed in Evans v. Wisconsin Department of Justice, 2013AP816 (Feb. 27, 2014).

    Under Wis. Stat. section 947.01(1), disorderly conduct includes “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.”

    The three-judge panel noted that Evans was convicted for “violent, abusive, and otherwise disorderly conduct” and “violent conduct necessarily implies the use of physical force.” Thus, the panel agreed with the decision to deny his application.

    The panel noted that it did not consider his actual conduct in a reaching a conclusion. “We have considered only the fact of his conviction, the statutory definition of disorderly conduct, and the ‘permitted class of documents,’” Judge Paul Lundsten wrote.

    That is, the panel reviewed the criminal complaint and the plea transcript to conclude that “violence” was one alternative element forming the basis of his conviction.

    Not all disorderly conduct convictions imply the use or attempted use of physical force, the panel explained. But Evans was convicted for “violent” conduct, among others.

    In a footnote, the panel also explained that “abusive” conduct “does not necessarily denote violence or the use of physical force but instead could be violent or nonviolent.”

    The appeals court also rejected Evans argument that his adult stepdaughter was not in a domestic relationship with him because Evans was not “similarly situated” as a parent.

    “The [federal] statute is plainly intended to cover a broad range of family and family-like relationships,” Judge Lundsten wrote. “Excluding stepparents, even those who do not actively ‘parent’ a stepchild, would run contrary to Congress’s intent that the statute be broadly applied.”

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