On Friday, the Wisconsin Supreme Court unanimously decided that a conviction for domestic violence-related disorderly conduct does not prevent someone from carrying concealed guns and other weapons under federal law.
That changes the way things are done in Wisconsin. In the past, officials have interpreted that conviction, if there's some basis of domestic violence, as barring gun possession.
The Wisconsin Department of Justice hasn’t responded to requests for estimates of how many people will now be able to get concealed carry permits or possess guns at home.
This particular case dealt with a defendant who was convicted of disorderly conduct with underlying facts of domestic abuse. In 1993, the defendant’s wife was home alone with a four-year-old daughter. The defendant broke through the front door, punched a hole in the glass and unlocked it from the inside. He then went into her home armed with a slab of lumber and told his wife she was dead. When she asked him to leave, he threatened her that if she didn't move away from the door, he would let her have it. Outside, he told her that he didn't care what would happen to her if he killed her.
Many years later, the defendant applied for a concealed carry permit in Wisconsin and was rejected. He was not deemed to be eligible to possess a gun under federal law because misdemeanor disorderly conduct in Wisconsin, when it has a domestic violence component, was interpreted as being a misdemeanor crime of domestic violence under federal law.
Those misdemeanor crimes of domestic violence are supposed to have an element, which is a component of the crime that the prosecutor has to prove, which establishes that the defendant used or threatened use of force or threatened to use a weapon.
Wisconsin criminal defense attorney Tony Cotton explains what happened next.
“Wisconsin, when it analyzes who can get a [concealed carry] permit looks to those prohibited categories to decide, ‘OK, if this person has any of those prohibited characteristics, they can't possess a firearm, therefore, they can't have a [concealed carry] permit.’ And that's what this decision really gets to the heart of is it deals with those federal prohibitions and whether they apply in Wisconsin.”
Cotton says the typical context was domestic violence-related disorderly conduct. “We're not talking about bar fight cases where it's just a bunch of knuckleheads fighting each other. Those weren't the ones that, you know, anybody thought prohibited gun ownership. It was that category of cases, which is the majority of disorderly conduct-battery offenses, inter-spousal, alleged violent behavior, arguments, things of that nature, those crimes.”
The Wisconsin Supreme Court unanimously decided that a conviction for disorderly conduct, domestic violence doesn’t qualify as a misdemeanor crime of domestic violence under federal law, and that’s because of the way the statute is written, says Cotton.
“Disorderly conduct is one of the strangest crimes in Wisconsin because you can commit it by being loud, boisterous, otherwise disorderly, violent, profane— there's a million of adjectives that are used,” he says. “And so there's a variety of ways you can commit that crime. The [Wisconsin] Supreme Court held that disorderly conduct does not require the use of physical force. And because it doesn't require that as one of its elements, federal law doesn't prohibit you from possessing a gun if you're convicted of domestic disorderly.”
Cotton says the decision likely wasn't a hard one for the court. "It's just somewhat astounding that it took until 2022 to have true clarity on this issue. And it's also astounding just to have this Supreme Court unanimously agree on anything that's remarkable."
Cotton also calls the decision one of the most monumental decisions he’s read in quite a long time. He says the immediate effect is to re-enfranchise, as opposed to disenfranchise many people who previously thought they couldn't possess firearms.
Justice Jill Karofsky agreed with the underlying decision as to whether disorderly conduct is a misdemeanor crime of violence under federal law. But she wrote in a concurring opinion that she had some misgivings about the decision. She says Congress has banned convicts of some misdemeanors because they wanted to avoid a "dangerous loophole" in which only felons were stripped of gun rights.
Karofsky says in the realm of domestic violence, threats to kill, like the one the defendant made to his wife in this case, more than double the risk of femicide.
She writes that guns can be deadly in these situations. “A domestic abuse victim is five times more likely to be killed by her abuser when the abuser has access to a gun," Karofsky writes. "Every month in this country an average of 70 women lose their lives to a domestic abuse perpetrator using a gun.”
The justice suggested that Wisconsin’s Legislature close the loophole by enacting some legislation that creates new crimes or amends other ones.
Cotton says if the Legislature wants to narrow people’s gun rights in Wisconsin, it’s free to do so.
“I don't see the Republican-controlled Legislature narrowing gun rights, but maybe I'm wrong,” he says.
Convicting someone of misdemeanor battery is one option for prosecutors. “If a person’s convicted of a battery offense that's a different story,” says Cotton. “That has an element that requires physical force. If the person is a felon, they can't possess a firearm. So by no means does this open the door to felons going in and getting guns again.”
But he says that many defendants he’s represented took issue with accepting a plea deal for a misdemeanor disorderly conduct because of the Second Amendment implications of the conviction. And he notes that the barriers extended to people who had their domestic violence-related disorderly conducts expunged.
Cotton says with this decision, it’s clear that if someone was or is convicted of domestic disorderly conduct, and they have no other barriers, they are now able to lawfully possess a gun.
