A disorderly conduct conviction will bar an applicant from getting a handgun permit from the state, if the charging documents reveal a domestic relation between the applicant and the victim.
Relying on the recent U.S. Supreme Court opinion in U.S. v. Hayes, (No. 07-608)(Feb. 24, 2009), the Wisconsin Court of Appeals held that it does not matter whether a domestic relationship between the aggressor and victim is an element of disorderly conduct.
Instead, provided the charging documents and police reports reveal such a relationship, disorderly conduct is a predicate offense barring the defendant from possessing a gun under 18 U.S.C. 922(g)(9).
Joseph E. Koll, Jr., was convicted of two counts of disorderly conduct in 1998, after a domestic dispute with his live-in girlfriend.
In 2007, he attempted to purchase a handgun, but the Department of Justice denied his request. On review before the Division of Law Enforcement Services, the administrator also denied the request, concluding that Koll’s convictions involved “misdemeanor crime[s] of domestic violence,” within the meaning of 18 U.S.C. 921(a)(33).
Koll sought judicial review, and Green Lake County Circuit Court Judge William M. McMonigal reversed, because a domestic relationship is not an element of disorderly conduct.
The DOJ appealed, and in an opinion by Judge Harry G. Snyder, the Court of Appeals reversed, ruling that the DOJ properly denied the request for a gun permit.
In Hayes, the U.S. Supreme Court held that, to trigger the ban on gun possession under the statute, the predicate misdemeanor offense need not identify a domestic relationship between the aggressor and victim as an element of the crime.
Noting that, in 1996, when the ban was enacted, only one-third of the states even had criminal statutes specifically describing crimes of domestic violence, the Supreme Court wrote, “we find it highly improbable that Congress meant to extend … [its] firearm possession ban only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense.” Hayes, slip op. 11.
Finding Hayes dispositive, the Court of Appeals concluded Koll’s permit was properly denied.
The Court of Appeals correctly found that Hayes is dispositive on the issue it addressed in its opinion.
However, citizens with prior Wisconsin disorderly conduct convictions should still be able to get a permit to possess firearms without running afoul of the federal statute, if they raise a different argument.
18 U.S.C. 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as an offense that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon…”
However, the disorderly conduct statute contains no such element.
Section 947.01 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.”
In contrast to a domestic violence battery conviction, neither use of force, nor the threat of it, is required for disorderly conduct. A person can be convicted of disorderly conduct merely for using profanity, if the circumstances are such that it could provoke a disturbance.
If Koll were to possess a gun, and were to be prosecuted in federal court under sec. 922(g)(9), the indictment would be dismissed.
While his underlying convictions may be “misdemeanor crimes of domestic violence” in the general sense, they clearly are not, as that term is defined by federal statutes.