March 3, 2020 – Felony arrest records must be expunged from the state’s crime database because the subject was never charged and the arrests were improperly appended to unrelated ordinance violations, an appeals court has ruled.
Demonta Hall was arrested in 2015 and 2017. In both cases, the state decided not to charge Hall within two days of the arrest. He requested expungement of those records.
Under Wis. Stat. section 165.84(1), individuals arrested but not charged can request return of any fingerprint record from the Crime Information Bureau (CIB) database, maintained by the Wisconsin Department of Justice (DOJ).
The CIB database is different than the Wisconsin Circuit Court Access website (formerly known as CCAP), the online and public database for state court records.
The CIB is linked to the federal crime database and shows arrest and other information, even if a criminal case is not filed or prosecuted. Employers and landlords often request CIB records to screen applicants, and they can be difficult to decipher.
DOJ declined to remove Hall’s CIB arrest records because they were administratively appended to municipal ordinance violations. The minor ordinance violations and the criminal arrests were tied together through a “cycle” format used to organize the CIB, even though the violations occurred months or years prior to the arrests.
The Milwaukee County Circuit Court ordered expungement of the arrest records. In State v. Hall, 2018AP2274 (Feb. 26, 2020), a three-judge panel for the District II Wisconsin Court of Appeals affirmed, noting that “cycling” is problematic.
Although all three judges ruled in favor of Hall, they were not fully aligned on the remedy. Judge Mark Gundrum said Hall was only entitled to return of the fingerprint cards. Judge Paul Reilly and Chief Appeals Court Judge Lisa Neubauer interpreted the statute more broadly to conclude that Hall’s arrest records must be expunged.
“It goes without saying that if DOJ publishes information about a person that it should not under the law, that information is highly prejudicial to a person’s employment and housing opportunities as well as the person’s reputation,” wrote Reilly in a lead opinion.
Hall’s Arrests
In 2015, Hall was arrested for possession of an electronic weapon. At the time, he had an outstanding bench warrant on a traffic citation, operating while suspended (OWS), from 2014. DOJ included the OWS within the arrest event for an electronic weapon.
Police are not required to report municipal ordinance violations, so the OWS was not included in the CIB prior to DOJ’s decision to “cycle” it with the criminal arrest event.
Two days later, the state decided not to file charges related to an electronic weapon, and Hall received a fine on the OWS charge in Milwaukee Municipal Court.
Similar events transpired in 2017, when Hall was arrested for on allegations of sexual assault. At the time, he had a bench warrant for a municipal violation of disorderly conduct. DOJ “cycled” the disorderly conduct as part of the arrest event.
Like the OWS, Hall received a fine on the disorderly conduct but the state, two days after arrest, decided not to charge him on allegations of sexual assault.
When Hall requested expungement of the criminal arrest records from CIB, the DOJ declined because the arrests were tied to the ordinance violations that were not cleared.
Appeals Court Sides with Hall but Differ on Remedy
DOJ appealed after the circuit court reversed DOJ’s decision to reject Hall’s expungement request. The appeals court recently affirmed the circuit court.
The three-judge appeals court panel said DOJ “has no authority to ‘cycle’ unrelated charges together so as to prevent expungement.”
“Hall’s criminal history report contains arrest records of two serious felony crimes that the state recognized within two days that it would not prosecute,” Judge Reilly wrote.
“Put bluntly, the statute plainly does not allow for an uncharged sexual assault to remain on a person’s public record solely because DOJ decided to ‘cycle’ an unrelated ordinance violation from over a year prior to the current arrest.”
Chief Appeals Court Judge Lisa Neubauer wrote a concurring opinion. She agreed with the result reached by the lead opinion, but disagreed with the lead opinion’s conclusion that the plain language of Wis. Stat. section 165.84(1) is clear.
“Although it may be clear as applied to other facts, the statute becomes confusing and ambiguous when, as here, we apply it to multiple unrelated offenses spread over time while taking into consideration administrative constructs like ‘cycles’ and ‘arrest events.’” Chief Judge Neubauer wrote.
However, Neubauer analyzed the statutory language to resolve the ambiguity, and concluded that the arrest records must be expunged under that interpretation.
“When applying the statute to achieve its purpose, I decline to rely on DOJ’s nonstatutory, administratively created constructs to the fingerprint card return request at issue here,” Chief Judge Neubauer wrote.
The appeals court panel reversed DOJ’s decision and remanded the case so the circuit court can order expungement of Hall’s arrests from the CIB database.
Judge Mark Gundrum also wrote a concurring opinion. He also agreed that the fingerprint cards, which note the felony arrests, must be returned to Hall. But Judge Gundrum said that return of the cards should be the extent of the remedy.
“The statute certainly says nothing about expunging all records related to a person’s arrest,” Gundrum wrote. “I concur to the extent that the opinions of my colleagues order return of those cards, but I do not agree that Hall is entitled under § 165.84(1) to broader ‘expungement’ of his September 21, 2015 and January 11, 2017 ‘arrest records.’”
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