June 8, 2022 – The Wisconsin Department of Justice (DOJ) erred by revoking a concealed weapons permit issued to a man who was convicted of disorderly conduct after threatening his wife, the Wisconsin Supreme Court has ruled.

In Doubek v. Kaul, 2022 WI 31 (May 20, 2022), the supreme court unanimously held that a disorderly conduct conviction under Wisconsin law does not constitute a misdemeanor crime of domestic violence, a category of offenses which under federal law bars offenders from holding concealed weapons permit (CCW).

Disorderly Conduct Conviction

In 1993, Daniel Doubek was convicted of disorderly conduct, a misdemeanor under Wis. Stat. section 947.01(1).

Doubek was convicted after he broke into the home of his estranged wife, brandished a 2x4 slab of lumber, and told his wife that she “was dead.”

During the incident, Doubek told his wife that he would “let her have it” and said that he didn’t care what happened to him if he killed her.

In 2016, Doubek applied for and was issued a CCW by DOJ.

During an audit conducted in 2019, DOJ determined that Doubek was prohibited from having a CCW based on the 1993 conviction. DOJ concluded that Doubek’s disorderly conduct conviction constituted a “misdemeanor crime of domestic violence” under federal law.

After DOJ revoked his CCW, Doubek petitioned for judicial review under section 175.60(14m).

The Brown County Circuit Court upheld the revocation, and the court of appeals certified the case to the supreme court.

Federal-State Law Linkage

In his opinion for the court, Justice Brian Hagedorn explained that federal law prohibits persons convicted of “misdemeanor crimes of domestic violence” from possessing a CCW.

Under section 175.60(3)(b), DOJ may not issue a CCW to a person prohibited by federal law from possessing a firearm. If a person holds a CCW despite that prohibition, section 175.60(14)(a) mandates that DOJ revoke the CCW.

The relevant federal law, 18 U.S.C. 922(g)(9), defines a “misdemeanor crime of domestic violence” as a misdemeanor under state, tribal, or federal law that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”

That subsection had two criterion, Justice Hagedorn pointed out: 1) a specified, domestic relationship between perpetrator and victim and 2) a crime that includes an element of the use or attempted use of physical force or the threatened use of a deadly weapon.

Hagedorn explained that Doubek’s crime satisfied the first criterion because he was married to the victim of his disorderly conduct conviction.

Multiple Elements or Alternate Means?

The second criterion, Justice Hagedorn wrote, is element-specific and “does not depend on the facts underlying any specific conviction.”

Doubek argued that physical force or the threatened use of a deadly weapon was not a necessary element of the crime of disorderly conduct.

Section 947.01(1) specifies that whoever 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” in a public or private place is guilty of disorderly conduct.

The key question, Hagedorn explained, was whether “violent” and “boisterous” conduct, for example, were 1) alternate circumstances that satisfied one of the two elements of the crime or 2) violent disorderly conduct and boisterous disorderly conduct were separate crimes.

The answer to that question, Justice Hagedorn concluded, was that “violent” and “boisterous” and the other adjectival phrases in section 947.01(1) simply enumerated different ways to commit the same crime.

Doubek’s conviction was for “violent, abusive and otherwise disorderly conduct,” Hagedorn pointed out, but he was charged and convicted of a single count of disorderly conduct, not three.

Justice Hagedorn noted that in Evans v. Wis. Dept. of Just., 353 Wis. 2d 289, 844 N.W.2d 403 (2014), the Wisconsin Court of Appeals held that the violent conduct component of a conviction for disorderly conduct could be a separate element of the crime, depending on how the crime was charged.

Evans must be overruled, Hagedorn concluded, because section 947.01(1) is indivisible.

Violence, Threatened Use of Weapon Not Elements of Disorderly Conduct

A person could be convicted of disorderly conduct under section 947.01(1) for the use or attempted use of physical force or the threatened use of a deadly weapon, Justice Hagedorn wrote, “but the statute does not make such conduct an element of the crime that must always be proven.”

“A person may be convicted of disorderly conduct for all kinds of conduct that does not involve the use or attempted physical force or threatened use of a deadly weapon—for example, profane or unreasonably loud behavior,” Hagedorn wrote.

Because disorderly conduct was an indivisible crime that didn’t require the use of physical force or the threatened use of a deadly weapon,” Justice Hagedorn explained, it was not a “misdemeanor crime of domestic violence” under federal law.

Consequently, Hagedorn concluded, DOJ erred by revoking Doubek’s CCW.

‘As nonsensical as it is dangerous’

Justice Jill Karofsky wrote a concurring opinion.

While the majority opinion was correct on the law, Karofsky wrote, “this result is as nonsensical as it is dangerous.”

“In the realm of domestic violence, threats to kill, like the one Doubek made to his wife, more than double the risk of femicide,” Karofsky wrote, citing a study published in the American Journal of Public Health.

Karofsky suggested the legislature close what she called a “loophole” in the federal law by1) enacting a threatened-battery criminal statute that included the threatened use of a deadly weapon 2) making domestic abuse a standalone crime, or 3) authorizing courts to determine that the facts underlying a conviction constituted domestic violence.