June 11, 2024 – A man convicted of a domestic violence misdemeanor is prohibited from buying a gun under federal law even though a state court had expunged the conviction, the Wisconsin Court of Appeals (District III) has held in Van Oudenhoven v. Department of Justice, 2023AP70 (June 4, 2024).

In 1994, in Calumet County Circuit Court, Scot Van Oudenhoven was convicted of misdemeanor battery as an act of domestic violence against a woman.

In 2019, Van Oudenhoven petitioned the circuit court to have the conviction expunged. The circuit court granted the petition.

DOJ Denial

In 2022, Van Oudenhoven tried to buy a gun in Wisconsin. The state Department of Justice (DOJ) Crime Information Bureau Firearms Unit denied Van Oudenhoven’s application to buy the gun because of the 1994 conviction.

Van Oudenhoven lost two administrative appeals of the decision. He then petitioned for judicial review in Winnebago County Circuit Court.

The circuit court sustained DOJ’s decision. Van Oudenhoven appealed.

DOJ Had Authority to Deny Purchase

On appeal, Van Oudenhoven argued that DOJ is not authorized by federal law to deny a gun purchase in Wisconsin because the would-be purchaser has been convicted for a domestic violence misdemeanor.

But Judge Gregory Gill, writing for a three-judge panel, rejected that argument. He pointed out that Wis. Stat. section 175.35(2g)(c)4.c. recognizes that DOJ is authorized to deny a handgun purchase under federal law, after searching state and federal criminal history databases.

Gill also noted that under 28 C.F.R. section 25.6(b)-(d), a federal firearms licensee (FFL) must contact the National Instant Criminal Background Check System (NICS) before selling a gun to someone.

The NICS then searches its criminal conviction database and informs the FFL whether the sale may proceed, is delayed, or is denied under 18 U.S.C. section 922 or a state law.

“In short, federal statutory and regulatory authority requires the DOJ … to determine whether a handgun purchase would violate either state or federal law,” Judge Gill wrote.

Meaning of Expungement

Van Oudenhoven argued that his purchase of a handgun wouldn’t violate 18 U.S.C. section 922. That statute prohibits anyone “convicted of any court of a misdemeanor crime of domestic violence” from owning a gun.

However, 18 U.S.C. section 921(a)(33)(B)(ii) specifies that a conviction that has been “expunged or set aside” does not count as a “misdemeanor crime of domestic violence” under 18 U.S.C. section 922.

Van Oudenhoven argued that 18 U.S.C. section 921(a)(33)(B)(ii) applied to his conviction because the Winnebago County Circuit Court had expunged it without expressly indicating on the expungement certificate that he was prohibited from owning a gun.

Judge Gill concluded that the meaning of “expunged or set aside” must be determined by federal law.

Van Oudenhoven argued that under Logan v. United States, 552 U.S. 23 (2007), “expungement” and “set aside” meant “a measure by which the government relieves an offender of some or all of the consequences of his conviction,” and therefore his expungement fit within section 921(a)(33)(B)(ii).

But Gill concluded that the U.S. Supreme Court in Logan had not held that a conviction had been expunged or set aside merely because some of the consequences of the conviction had been lifted.

“Rather, the Court was simply identifying the general differences between those terms and a defendant who retains his or her civil rights and is ‘simply left alone,’” Judge Gill wrote.

Persuasive Authority

Gill looked to state court decisions in Pennsylvania and Minnesota and federal court decisions from the U.S. Court of Appeals for the Seventh, Ninth, and Tenth Circuits to conclude that the plain meaning of “expunged or set aside” as used in 18 U.S.C. section 921(a)(33)(B)(ii) meant an action that removed all, rather than some, consequences of a conviction.

Judge Gill also pointed to a federal expungement statute, 18 U.S.C. section 3607, which specifies that in the eyes of the law, an expungement restores a person “to the status he occupied before such arrest of institution of criminal proceedings,” and requires records of the conviction to be destroyed.

Gill also noted that 18 U.S.C. section 921(a)(33)(B)(ii) also applies to offenses for which a person “has been pardoned or has had civil rights restored.”

“Given the structure of section 921(a)(33)(B)(ii), the plain meanings of ‘expunged’ and ‘set aside,’ and Congress’s use of ‘expungement’ in 18 U.S.C. section 3607, we agree with the Tenth Circuit’s analysis … that those terms must be interpreted to mean the same thing – namely the state procedure in question must ‘completely remove all effects of the conviction at issue,’” Judge Gill wrote.

Expungement Is Limited

Gill concluded that the expungement of Van Oudenhoven’s conviction didn’t completely remove all effects of his 1994 conviction.

“Our state supreme court recently adjudicated in Braunschweig that, unlike vacatur, see Wis. Stat. section 973.015(2m), which ‘removes the fact of conviction,’ and acts as if ‘there had been no judgment,’ Wisconsin’s expungement of a conviction merely deletes the evidence of the underlying conviction from court records,” Judge Gill wrote.

In State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, the Wisconsin Supreme Court held that a second operating while intoxicated offense constituted a prior conviction under Wis. Stat. section 343.307(1) even though it had been expunged.

Gill pointed out that the U.S. Court of Appeals for the Ninth Circuit held in Jennings v. Mukasey, 511 F.3d 894 (2007) that a conviction expunged under a California expungement statute did not “expunge or set aside” a conviction under 18 U.S.C. section 921(a)(33)(B)(ii), because expungement under the statute did no more than remove evidence of the conviction from court records.

“Van Oudenhoven’s expungement did not ‘completely remove all effects’ of his misdemeanor conviction or ‘render the conviction a legal nullity,’” Judge Gill wrote.

“Van Oudenhoven’s conviction remains an ‘unvacated adjudication of guilt,’ see Wis. Stat. section 340.01(9r), and, accordingly, the DOJ was able to access his records and deny his application to purchase a handgun in Wisconsin.”