Weekly Case Digests – June 7, 2021 – June 11, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Ross R. Thill v. Reed A. Richardson

Case No.: 20-2965

Officials: MANION, ROVNER, and ST. EVE, Circuit Judges.

Focus: Habeas Relief – Ineffective Assistance of Counsel

A Wisconsin jury found Ross Thill guilty of sexual contact with A.M.M., his ex‐girlfriend’s eight‐ year‐old daughter. At trial, A.M.M. testified that Thill had sexually assaulted her, and the prosecution presented forensic evidence corroborating her testimony—Thill’s semen was found on her underwear. Thill’s defense was that his jilted ex‐ girlfriend framed him by saving his semen for over a year, planting it on her daughter’s underwear, and then coaching her to make false accusations. While cross‐examining Thill and in closing arguments, the prosecutor referenced Thill’s failure to tell the police during his initial interview that he believed his ex‐girlfriend had the means or motivation to frame him.

In state postconviction proceedings, Thill argued that the prosecutor impermissibly used his silence after receiving Miranda warnings to impeach him—violating Doyle v. Ohio, 426 U.S. 610 (1976)—and that his trial counsel was ineffective for failing to object. The Wisconsin Court of Appeals concluded Thill had not demonstrated prejudice. Because this conclusion was not contrary to nor an unreasonable application of clearly established federal law, we affirm the district court’s denial of habeas relief.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Oscar Guzman-Garcia v. Merrick B. Garland

Case No.: 20-1966

Officials: RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Immigration – Asylum

Oscar Guzman-Garcia fled Mexico for the United States in 2006, fearing gang retaliation for witnessing the murder of his older brother. Unfortunately, he did not apply for asylum and withholding of removal until 2014— eight years after his unauthorized entry. As a result, the immigration judge (“IJ”) determined that Guzman-Garcia’s asylum application was untimely. The IJ found that he had not filed it within the one-year statutory deadline that begins upon entry to the United States or shown that he qualified for an exception. Alternatively, the IJ concluded that even if the application was timely, she would nonetheless exercise her discretion to deny it, given Guzman-Garcia’s criminal history and lack of rehabilitation evidence. The Board of Immigration Appeals (the “Board”) affirmed the decision on the untimely basis. On petition for review, Guzman-Garcia challenges only the IJ’s alternative basis for denial of his petition—the exercise of discretion to deny asylum. Because Guzman-Garcia has raised no arguments against the dispositive determination that his application is time-barred, we deny his petition for review of the Board’s decision to deny asylum.

Guzman-Garcia separately contests the Board’s denial of his petition for withholding of removal. The Board held that Guzman-Garcia had not established any of the requisite elements and affirmed the IJ’s decision. Because substantial evidence supports the Board’s denial of Guzman-Garcia’s petition for withholding of removal, we deny his petition for review.

Petition denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. David L. Newton

Case No.: 20-2893

Officials: RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.

Focus: First Step Act – Compassionate Release

David Newton, an inmate at FCI Seagoville in Texas, moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He seeks a reduced sentence of time served because of the COVID-19 pandemic. He submitted that the combination of his asthma, hypertension, and use of a corticosteroid heightened his risk of serious consequences should he become infected. The district court denied the motion; it concluded that Mr. Newton failed to establish the “extraordinary and compelling reasons” required under the compassionate release statute. Because the district court did not address adequately Mr. Newton’s arguments, we vacate the court’s judgment and remand the case for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Alfred E. Jerry

Case No.: 20-1298

Officials: SYKES, Chief Judge, and HAMILTON and BRENNAN, Circuit Judges.

Focus: Sentencing Guidelines – Plain Error

Alfred Jerry robbed a cellphone store at gunpoint and then pleaded guilty to Hobbs Act robbery in violation of 18 U.S.C. § 1951. When he committed this crime, Jerry had previous state convictions for robbery and attempted murder. At sentencing in this case, the district court determined that those state convictions, in addition to his Hobbs Act robbery conviction, meant that Jerry qualified as a “career offender” under the Sentencing Guidelines. That designation requires that a defendant have committed at least three “crimes of violence” as defined by U.S.S.G. § 4B1.1 & 1.2. While this case was on appeal, this court held in Bridges v. United States that Hobbs Act robbery does not qualify as a “crime of violence” under the Guidelines. 991 F.3d 793, 797 (7th Cir. 2021). Because the plain error standard requires courts to look to the law at the time of appeal when deciding if an error is “clear and obvious,” Henderson v. United States, 568 U.S. 266, 269 (2013), we conclude that it was plain error to sentence Jerry as a career offender, and we remand for resentencing.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Julius Evans v. Alex Jones

Case No.: 19-3466

Officials: RIPPLE, BRENNAN, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence

An Illinois jury convicted Julius Evans of the first-degree murder of Moatice Williams, who was killed in a drive-by shooting in Chicago. Only one eyewitness—Andrew Jeffers—connected Evans to the shooting. Jeffers’s account of the shooting dramatically changed over time. Jeffers initially only provided a few general identifying details of the shooter, and did not specifically identify any of the shooters. Eleven months later, however, the police approached him while he was incarcerated and Jeffers then identified Evans as the shooter. Then, at trial, Jeffers recanted that identification: he testified that he did not see the identity of the shooter but had identified Evans because the police told him to.

During closing arguments, the prosecutor argued that Jeffers’s trial testimony—that he did not see Evans shoot Williams—was false and the jury should disbelieve it because Jeffers only changed his story after being paid a visit by a defense investigator working for Evans’s co-defendant, Mario Young, who was a known gang member. Evans appealed his conviction, asserting that the prosecutor’s statements during closing argument deprived him of his right to a fair trial. He contended that the prosecutor’s statements were improper because there was insufficient evidence in the record to support them, and that they were prejudicial because Jeffers’s credibility was of the utmost importance given the lack of other evidence against Evans. The state appellate court concluded that there was sufficient evidence in the record to support the prosecutor’s statements during closing argument, and so they were not improper.

Evans unsuccessfully petitioned the state court for postconviction relief. He then filed a habeas petition in federal court, which the district court granted. Upon a close examination of the record and giving deference to the state appellate court’s findings, we find that the state appellate court’s determination that the prosecutor’s statements were proper was objectively unreasonable. While we “do not lightly grant petitions for a writ of habeas corpus brought by state prisoners,” Cook v. Foster, 948 F.3d 896, 899 (7th Cir. 2020), we agree with the district court that the facts of this case compel the conclusion that Evans was deprived of his right to a fair trial and he is entitled to relief. We therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Adonnis Carswell

Case No.: 20-1036

Officials: RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Warrantless Search – Probable Search

A jury convicted defendant-appellant Adonnis Carswell on four drug and firearm offenses, including possession of heroin with intent to distribute. 21 U.S.C. § 841(a)(1). He raises two issues on appeal. First, he contends that the search warrant for his residence was issued without probable cause, so that the heroin, cash, and firearms found there should have been suppressed as evidence. Second, he contends that several portions of the prosecutor’s closing arguments violated his constitutional rights.

We affirm. The judge who issued the search warrant had a reasonable basis for thinking evidence of drug and firearm crimes was likely to be found at Carswell’s home. The prosecution’s closing arguments were not improper, did not make Carswell’s trial unfair, and did not deny him due process of law. We address first the search warrant issue and then the closing arguments. Key to both issues is Carswell’s trial defense, which was that the 64 grams of heroin seized in the search of his home was only for his personal use and that he was not distributing drugs of any sort.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Cortez Javan Rogers v. City of Hobart, Indiana, et al.,

Case No.: 20-2919

Officials: RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.

Focus: Personal Jurisdiction 

Hobart police officers, relying on information obtained from an investigative database, misidentified Appellant Cortez Javan Rogers as the person who allegedly had intimidated a witness in a pending murder case. Mr. Rogers shares a first and last (though not middle) name with another person who was the actual subject of the officers’ search. Based on the information found in an investigative database, the Hobart officers applied for an arrest warrant and, upon obtaining a warrant from an Indiana judge, placed it in a database accessible to police departments in other states. A Chicago police officer later had an encounter with Mr. Rogers and, upon checking the outstanding warrants database, learned of the outstanding Indiana warrant. The officer then arrested Mr. Rogers. Chicago authorities immediately released him upon discovery that the Indiana warrant misidentified the suspect.

Mr. Rogers then brought this action in the United States District Court for the Northern District of Illinois against the City of Hobart, the Hobart Police Department, and Sergeant Rod Gonzalez, its lead investigator. The defendants moved to dismiss for lack of personal jurisdiction. The district court granted the motion. We now affirm the district court’s judgment. The Hobart officers did not purposefully engage in any activity in Illinois or direct any action in Illinois that would cause them to reasonably anticipate that they would be haled into the courts of that State. Moreover, the exercise of personal jurisdiction over them would offend traditional notions of fair play and substantial justice. Simply put, none of the supposed Illinois contacts asserted by Mr. Rogers, whether considered separately or together, constitute the requisite “minimum contacts” among the State, the defendants, and the cause of action necessary to fulfill the requirements of due process. Furthermore, to subject Indiana law enforcement officers to the jurisdiction of another state’s courts under these circumstances would be fundamentally unfair.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michelle Jauquet v. Green Bay Area Catholic Education, Inc.,

Case No.: 20-2803

Officials: RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Supplemental Jurisdiction – Title IX Violation  

Before the arrival of the COVID‐19 pandemic in the spring of 2020, Plaintiff Michelle Jauquet’s daughter, “Student A,” was already experiencing an exceedingly difficult eighth grade year at Notre Dame of De Pere Catholic Middle School in Wisconsin. One of her classmates, “Student B,” repeatedly and inappropriately targeted Student A with sexually suggestive harassment beginning in the fall of 2019 and continuing into the spring of 2020. As a result of this bullying, Jauquet brought this suit on behalf of herself and her daughter, alleging Title IX violations by the operator of the students’ school, Defendant Green Bay Area Catholic Education, Inc. (“GRACE”), as well as breach of contract and negligence claims under Wisconsin state law. The district court dismissed Plaintiffs’ Title IX claim with prejudice for failing to state a claim and declined to continue exercising supplemental jurisdiction over the state law claims. This appeal followed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Stivers

Case No.: 20-1180; 20-2664

Officials: MANION, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Federal Rules of Criminal Procedure Violation – Rule 43

Michael Stivers pled guilty to receiving, possessing, and distributing child pornography. At his sentencing hearing, the district court sentenced him to 300 months’ imprisonment. Because the parties disputed the restitution amount, the court deferred its restitution decision and allowed the parties to submit additional briefing on the issue. Stivers did not object to this course of action. Months later, once the briefs were submitted, the court entered a written order overruling Stivers’s objections to the government’s proposed restitution calculation and ordering Stivers to pay $3,000 in restitution.

On appeal Stivers maintains that the district court violated Federal Rule of Criminal Procedure 43 by ordering restitution in his absence. Rule 43(a)(3) provides that “the defendant must be present at …sentencing.” From that language, Stivers infers that a criminal defendant must be present when a court orders restitution, on the theory that restitution is part of a sentence. See United States v. Johnson, 934 F.3d 716, 719 (7th Cir. 2019).

Stivers’s supplemental arguments do not alter our conclusion that Rule 43(a)(3) is inapplicable here. To the extent Stivers contends that § 3553(c) creates an ambiguity in § 3664(c), we disagree. Section 3664(c) clearly suspends the operation of Rule 43(a)(3) to restitution orders under that section. Section 3553(c) says nothing about Rule 43, so it does not create any ambiguity as to whether § 3664(c) supersedes the rule. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (observing that the constitutional-avoidance canon applies only “when statutory language is susceptible of multiple interpretations”). To the extent Stivers now relies on § 3553(c) and the Constitution as independent grounds for relief, we do not consider his arguments. In his original appellate briefing, Stivers relied exclusively on Rule 43(a)(3). Our request for supplemental briefing on whether Rule 43(a)(3) applies did not give Stivers license to transform his appeal and seek relief on grounds he never raised in his original briefing.

Because Rule 43(a)(3) does not apply in this case, Stivers is not entitled to relief for the district court’s supposed violation of it. We need not address the government’s argument that any Rule 43 violation was harmless error.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Carr, Jr.,

Case No.: 2020AP360-CR

Officials: Brash, P.J., Graham and White, JJ.

Focus: Postconviction Relief – Newly Discovered Evidence

Robert Carr, Jr. appeals a judgment of conviction and an order of the trial court denying his motion for postconviction relief. He argues that he presents newly discovered evidence and claims of ineffective assistance of counsel that require an evidentiary hearing or a new trial. We reject Carr’s arguments, and accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: Bartelt Custom Automotive, Inc., v. Labor and Industry Review Commission, et al.,

Case No.: 2020AP800

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Due Process Violation

Bartelt Custom Automotive, Inc. (BCA), appeals an order of the circuit court affirming an order of the Labor and Industry Review Commission (LIRC) which found that BCA failed to provide Kevin Warlow with suitable employment following a work-related injury, in violation of WIS. STAT. § 102.35(3) (2019-20). BCA argues that LIRC’s determination, which reversed the decision of an Administrative Law Judge (ALJ), violated its due process rights because LIRC made a witness credibility determination without having the benefit of the ALJ’s personal impressions of the witnesses. We agree. Accordingly, we reverse and remand the matter to LIRC for a new hearing.

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WI Court of Appeals – District III

Case Name: Peoples State Bank v. Debra K. McCarty, et al.,

Case No.: 2020AP1757

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Foreclosure Judgment – Parking Easement

Peoples State Bank (“the Bank”) was granted a foreclosure judgment on a piece of commercial property owned by Debra McCarty. That property benefitted from a parking easement on adjacent residential property owned by Julie Pilecky. The sole issue on appeal is whether the foreclosure judgment—which did not reference either the parking easement specifically or easements in general—foreclosed McCarty’s interest in the parking easement, such that the parking easement continued to benefit the subject property after the Bank purchased that property at a sheriff’s sale.

Pilecky argues that under the plain language of WIS. STAT. § 846.10(1) (2019-20), the lack of any reference to the parking easement in the foreclosure judgment means that the foreclosed property did not include the parking easement. In response, the Bank asserts that although § 846.10(1) requires a foreclosure judgment to include a legal description of the foreclosed property, it does not require a foreclosure judgment to describe or otherwise reference any easements appurtenant to that property. The Bank further argues that other Wisconsin statutes and case law provide that appurtenant easements run with the dominant estate and need not be specifically described in a conveyance in order to be included with the property conveyed or transferred.

We agree with the Bank that the foreclosed property in this case included the parking easement, which was appurtenant to McCarty’s property, even though the foreclosure judgment did not mention either the parking easement specifically or easements in general. We therefore affirm the circuit court’s decision granting summary judgment in favor of the Bank on its claims for declaratory judgment and slander of title, and on Pilecky’s counterclaim for abuse of process.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kunle Famakinwa, Jr.,

Case No.: 2019AP395-CR

Officials: Neubauer, C.J., Reilly, P.J., and Davis, J.

Focus: Ineffective Assistance of Counsel

Kunle Famakinwa, Jr., appeals from a judgment convicting him of possession with the intent to deliver tetrahydrocannabinols (THC) in an amount of 200 grams or less and an order denying his postconviction motion seeking a new trial due to the ineffective assistance of trial counsel. He maintains that trial counsel performed deficiently in several ways, all of which improperly led the jury to find that he was guilty of possessing THC with the intent to deliver rather than for his own personal use. Because we conclude that none of trial counsel’s allegedly deficient acts or omissions prejudiced Famakinwa, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Travis D. Delabio

Case No.: 2019AP2211-CR

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Restitution Order

Travis D. Delabio appeals from a judgment of conviction for two counts arson and two counts burglary, all counts party to the crime, and from an order awarding the victim $21,500 in restitution. See WIS. STAT. §§ 943.02(1)(a), 943.10(1m)(a) (2019-20). This appeal concerns only the restitution order, with Delabio challenging both the process for awarding restitution and the amount of the award. We hold that the circuit court retained the authority to award restitution outside the statutory timeframe and that it did not erroneously exercise its discretion in setting the amount. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: 1033 North 7^th Street, A California Corporation, v. City of Fond Du Lac, et al.,

Case No.: 2020AP92

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Statutory Interpretation – Razing Buildings

1033 North 7th Street (the corporation) appeals from an order granting the City of Fond du Lac (the City) and its building inspector Doug Hoerth’s motion to dismiss the corporation’s complaint as untimely. The complaint, filed in September 2018, requested declaratory relief stating that a raze or repair order the City issued to the corporation in 2015 was no longer in effect. The order was issued by the City under WIS. STAT. § 66.0413 (2019-20). The corporation alleged that it relied on Hoerth’s assurances that the order had been satisfied by repairs and there was no deadline to complete the remaining repairs. The City argues, and the circuit court found, that as a matter of law, the corporation’s claim was barred by its failure to pursue the statute’s exclusive remedy under subsection (1)(h), which has a thirty-day statute of limitations to challenge the order. The corporation contends that the circuit court erred in its interpretation of § 66.0413(1)(h). We agree. The exclusive remedy provision of § 66.0413(1)(h) applies only to claims premised on the reasonableness of the order to raze. It does not apply to this challenge, which is based on acts occurring during the subsequent repairs required under the order. We reverse the order of dismissal and remand for further proceedings.

Recommendation for Publication

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WI Court of Appeals – District IV

Case Name: WI Dept. of Agriculture, Trade, and Consumer Protection, et al., Wisconsin Employment Relations Commission

Case No.: 2020AP406

Officials: Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

Focus: Employment – Displacement Rights

Claire Fried appeals a circuit court order reversing a Wisconsin Employment Relations Commission decision concluding that Fried had displacement rights under WIS. ADMIN. CODE § ER-MRS 22.08(3) (Dec. 2015). The issue we address is whether WIS. STAT. § 230.34(2)(b) (2013-14) as amended by 2015 Wis. Act 150 eliminated the displacement rights and invalidated § ER-MRS 22.08(3) (Dec. 2015). We conclude that the amended statute eliminated the displacement rights and invalidated § ER-MRS 22.08(3). Accordingly, we affirm the circuit court.

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WI Court of Appeals – District IV

Case Name: Andrew Dryja v. Wisconsin Employment Relations Commission, et al.,

Case No.: 2020AP427

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Statutory Interpretation – State Employment Relations

The Wisconsin Employment Relations Commission and Department of Natural Resources appeal a circuit court order reversing a commission decision that upheld the department’s discharge of Andrew Dryja. The issues relate to whether under the statute applicable to discharge without progressive discipline, the commission correctly affirmed three grounds that the department claimed provided just cause for discharge. The circuit court concluded that none of the three purported grounds was valid. We conclude that the department proved one ground, but not the other two. We modify the circuit court order that reversed the commission and, with those modifications, affirm the court’s remand to the commission.

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WI Court of Appeals – District IV

Case Name: Jeffery D. Anderson, et al., v. Anderson Tooling, Inc.,

Case No.: 2020AP898

Officials: Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

Focus: Judgment – Homestead Exemptions

This is a dispute between a judgment creditor, Anderson Tooling, Inc. (“ATI”), and married judgment debtors, Jeffery and Lori Anderson, regarding statutory homestead exemptions claimed by the debtors. The Andersons each claim an exemption as protection from a judgment lien that would otherwise attach to the Andersons’ residential property in Dodge County. See WIS. STAT. §§ 806.15(1) (addressing judgment liens), 815.20(1) (addressing homestead exemptions) (2019-20). In 2015, ATI entered a money judgment against the Andersons, from an Iowa state court, in the judgment and lien docket for Dodge County. In 2019, the Andersons sued ATI in Dodge County Circuit Court, seeking a declaratory judgment that the Anderson’s property was their homestead and that this entitled them to execute a recordable release from the judgment lien under § 815.20(2). The circuit court granted summary judgment to the Andersons. ATI appeals.

There is no dispute that the Andersons’ Dodge County property was their homestead when ATI entered the Iowa judgment on the Dodge County docket, and that this exempted the Andersons’ equity interests in the residential property from a judgment lien as of that moment in time. See WIS. STAT. § 815.20(1). ATI alleges, however, that in 2019 the Andersons ceased to occupy this property as their homestead. Based on this allegation of fact, ATI argues that the Andersons invalidated (in statutory terms, it “impaired”) the exemptions. See § 815.20(1).

We assume without deciding that the following premise advanced by ATI is an accurate statement of law: when a Wisconsin homestead exemption is valid as of the time when a judgment is entered on the judgment and lien docket, the exemption can then become “impaired” because the judgment debtors abandon the homestead, allowing the docketed judgment to become a lien attaching to the residential property at issue. Having made that assumption about the law, we conclude that summary judgment in the Andersons’ favor was appropriate because there is no genuine issue of fact that could be resolved to show that the Andersons impaired their exemptions through abandonment of the homestead after docketing.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Rock County v. J.J.K.,

Case No.: 2020AP2105

Officials: BLANCHARD, J.

Focus: Involuntary Commitment and Medication

J.J.K. appeals two circuit court orders: one granting Rock County’s petition to extend a prior involuntary commitment for 12 months and the other granting the County’s request for an order of involuntary medication and treatment during the period of extended commitment or until further order of the court. See WIS. STAT. §§ 51.20(13)(g)1., 51.61(1)(g)4. Regarding the recommitment order, J.J.K. primarily argues that the evidence was insufficient to show that, as of the time of the court’s challenged ruling, he was “currently dangerous” to himself, as the circuit court determined. Regarding the order for involuntary medication and treatment, J.J.K. argues that the County failed to prove that he was substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives to medication under the applicable statutory standards, because he was not fully informed about his options.

I conclude that there was clear and convincing evidence to support the circuit court’s determination that there was “a substantial likelihood” that J.J.K. “would be a proper subject for commitment if treatment were withdrawn,” see WIS. STAT. § 51.20(1)(am), based on sufficient proof of a substantial likelihood of dangerousness based on an inability to care for himself under the “fourth standard,” see § 51.20(1)(a)2.d. I separately conclude that there was also clear and convincing evidence sufficient to support the order for involuntary medication and treatment, including sufficient proof of his knowledge about options. Accordingly, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Mitchell L. Christen

Case No.: 2021 WI 39

Focus: 2^nd Amendment Violation and As-applied Challenge 

This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op. (Wis. Ct. App. Mar. 17, 2020), affirming the Dane County circuit court’s judgment convicting Mitchell Christen of operating or going This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op. (Wis. Ct. App. Mar. 17, 2020), affirming the Dane County circuit court’s judgment convicting Mitchell Christen of operating or going armed with a firearm while intoxicated, contrary to Wis. Stat. § 941.20(1)(b) (2017-18).

Christen challenges his conviction, arguing that Wis. Stat. § 941.20(1)(b) is unconstitutional as applied to him. He does not raise a facial challenge to the statute. Specifically, Christen claims that the statute violates his fundamental Second Amendment right to armed self-defense as held in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the United States Supreme Court recognized that the core of the Second Amendment is the right to possess or carry a firearm for self-defense. Id. at 635.

However, as to Christen’s as-applied challenge, we conclude Wis. Stat. § 941.20(1)(b) does not strike at the core right of the Second Amendment because he did not act in self-defense. Moreover, we conclude that § 941.20(1)(b) does not severely burden his Second Amendment right. Accordingly, we apply intermediate scrutiny to Christen’s as-applied challenge. Because § 941.20(1)(b) is substantially related to the important government objective of protecting public safety, it survives intermediate scrutiny as applied to Christen.

Accordingly, we conclude that Christen’s as-applied challenge to Wis. Stat. § 941.20(1)(b) fails. Therefore, we affirm.

Affirmed

Concur: HAGEDORN, J., filed a concurring opinion.

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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WI Supreme Court

Case Name: Fond Du Lac County v. S.N.W.,

Case No.: 2021 WI 41

Focus: Involuntary Commitment and Medication

S.N.W. petitioned for review of the decision of the court of appeals, Fond du Lac Cnty. v. S.N.W., No. 2019AP2073, unpublished slip op. (Wis. Ct. App. June 17, 2020), affirming the circuit court’s orders for involuntary commitment and involuntary medication and treatment. After reviewing the record and the briefs of both parties, and after hearing oral arguments, we conclude that this matter should be dismissed as improvidently granted.

Dismissed as improvidently granted

Concur:

Dissent: ANN WALSH BRADLEY, J., dissent.

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