A bit over a year ago, I learned about a problem: Some Wisconsin criminal defendants are beingmisadvised about how their state convictions affect their federal constitutional rights. In particular, some defendants convicted of disorderly conduct are being told that federal law permanently bars them from possessing firearms. And disorderly conduct convictions are quite common: Wisconsin courts accepted guilty pleas to more than 3,700 such charges in 2020 alone.
Navigating the murky intersection of state and federal law is hard. I spend a lot of time, as a federal defender, scrutinizing state statutes, in Wisconsin and elsewhere, trying to figure out how prior convictions under these statutes affect federal criminal liability. For example, do my clients’ state convictions qualify as “serious drug offenses,” “crimes of violence,” or “violent felonies,” as defined in the U.S. Code? The penalties they face in federal court depend on it. Moreover, in some cases, whether my clients have broken the law at all, or whether they still retain their full constitutional rights, depends on state law.
An individual’s criminal record is particularly significant as it relates to the Second Amendment: the right to own and possess a firearm. Firearms charges make up a large slice of the federal criminal docket. Although most people know that a felony bars a person from legally possessing a gun, they might not know that other state adjudications can do so as well. For instance, federal law prohibits anyone who has been “adjudicated as a mental defective” (language in dire need of updating) from possessing a firearm. The same goes for people subject to some types of restraining orders. Also, certain misdemeanor convictions can permanently deprive people of gun rights. In particular, a state conviction for a “misdemeanor crime of domestic violence” results in a lifetime firearms ban under federal law.
Federal Terms May Not Mean What You’d Think
Here’s where we get to that confusing state-and-federal nexus. Federal statutes often define their own terms, and those definitions don’t always mean what one would think. A “misdemeanor crime of domestic violence” sounds like any misdemeanor involving domestic violence. But it is not. That misdemeanor has to have “the use or attempted use of physical force, or the threatened use of a deadly weapon” as “an element” – that is, a legal element. Disorderly conduct, one of Wisconsin’s most often used domestic violence charges, lacks that element. The disorderly conduct statute does not require the use or attempted use of physical force. Nor does it require the threatened use of a deadly weapon. This means that a Wisconsin disorderly conduct conviction does not take away the convicted person’s Second Amendment rights.
That said, I recognize that the Wisconsin Court of Appeals held otherwise in Evans v. Wisconsin Department of Justice.1 But in reaching its decision, the court looked past the statutory language and considered what the circuit court said at Evans’ plea hearing.
Mathis v. United States,2 issued two years after Evans, effectively abrogated Evans. In Mathis, the U.S. Supreme Court explained that when applying the so-called categorical analysis (the analysis required by the domestic-violence firearm prohibition), courts cannot look at underlying documents in cases that involve a statute like Wisconsin’s disorderly conduct provision. A court just looks at the statute’s language and its specific elements. (Specifically, Mathis makes clear that statutes like Wisconsin’s disorderly conduct prohibition are not divisible – the listed ways that one can be “disorderly” are not alternative elements of distinct crimes about which jurors would have to unanimously agree at trial. That is confirmed by the many Wisconsin cases holding that, to find a defendant guilty, jurors do not need to agree on the specific way that a defendant violates the disorderly conduct statute.)
The upshot is that a person convicted of Wisconsin disorderly conduct, even with a domestic-violence surcharge, can still legally possess a firearm.
Getting the Law Right
Unfortunately, perhaps because of Evans, Wisconsin circuit court judges don’t seem to realize this. My federal defender colleagues and I have come across cases in which a defendant pleaded guilty to disorderly conduct in state court with a domestic-violence surcharge and the parties and the court acted as if federal law would permanently bar that person from possessing a firearm. In some cases, the state sentencing court even admonished our client on that point – incorrectly advising that federal law prohibited the defendant from having a gun.3
That’s a shame. After all, if attorneys and judges have one core responsibility, it’s to get the law right. That duty is heightened when dealing with a person’s constitutional rights. I understand why this happens: The law is complex, confusing, and constantly evolving. But if you primarily practice in state court, have to think about how state adjudications might affect a client’s federal rights, and are befuddled by a blizzard of federal terms, call a lawyer who practices in federal court – we are happy to talk with you.
Warning: We may take the opportunity to ask whether a federal client in state custody is likely to get into an early release program or how long average state drug-trafficking sentences are in your county. But the more state and federal lawyers talk to each other, the more we all gain.
» Cite this article: 94 Wis. Law. 36-38 (June 2021).
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What is your favorite place in Wisconsin?
I can’t pick just one! But some of my favorites are Camp Manito-wish in Boulder Junction; the top row of Camp Randall’s upper deck; the South Shore Farmer’s Market in Bay View; all of Milwaukee County Parks’ outdoor swimming pools; unique restaurants like Little Fat Gretchen’s, Amaranth Bakery, the Norske Nook, Classic Slice, Anmol, Beerline Café, and, of course, Carnitas Don Lucho; Milwaukee’s Reservoir Park; our beautiful State Capitol building; and Schoolhouse Beach on Washington Island.
One new favorite place is Kern Park in Milwaukee. A few years ago, I found an online list of Wisconsin “Champion Trees” and learned about two massive London planetrees in that park’s southeast corner, as it slopes down toward the Milwaukee River. London planetrees are a sycamore hybrid and have a strange smooth bark. They seem otherworldly and are the biggest living things within several miles of my home. So I like to walk to Kern Park and spend a few moments underneath those trees.
Anderson M. Gansner, Federal Defender Services of Wisconsin Inc., Milwaukee.
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1 Evans v. Wisconsin Dep’t of Just., 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403.
2 Mathis v. United States, 136 S. Ct. 2243 (2016).
3 Since writing this piece, the Wisconsin Court of Appeals issued a certification in Doubek v. Kaul, No. 2020AP704 (WI App Mar. 31, 2021), where it seemed to recognize the problem and asked the Wisconsin Supreme Court to look at whether Evans remains valid. This is great news! Hopefully, the Wisconsin Supreme Court will accept the certification, explain that Wisconsin disorderly conduct convictions do not prohibit individuals from possessing firearms under federal law, and end the misunderstanding