Under federal law, anyone convicted of any felony offense or of any domestic violence offense, even a misdemeanor, is prohibited from possessing a firearm. This is an example of what we call the “collateral consequences” of a criminal conviction.
Collateral consequences are those that do not stem directly from the criminal conviction itself. Jail time, fines, fees and restitution orders are the direct result of conviction. However, there are often many other consequences of a criminal conviction that are just as unavoidable, even though the criminal court doesn’t directly order them.
Recently, a Green Bay man challenged one of the collateral consequences of his 1993 disorderly conduct conviction: the federal firearm prohibition. He argued that he was convicted of neither a felony nor a crime of domestic violence, as the federal law requires before your carry rights can be taken away.
The state of Wisconsin’s Department of Justice agreed and, in 2016, it granted the Green Bay man a concealed carry license.
The federal Justice Department disagreed. It argued that, even though the definition of disorderly conduct in Wisconsin doesn’t include a threat of force, the Green Bay man’s conviction should be viewed as domestic violence-related.
According to court documents reviewed by the Associated Press, the conviction came after the man broke into his estranged wife’s trailer, waved a board around and shouted threats.
Wisconsin Supreme Court rules unanimously to restore man’s rights
In order for an offense to count as domestic violence-related for the purpose of federal law, it must include, as an element, the use or threat of force. If the crime can be committed without the use or threat of force, it cannot be considered a domestic violence crime.
Wisconsin’s disorderly conduct statute does not include the use or threat of force as an element. It is entirely possible to commit disorderly conduct in Wisconsin without threatening or hurting anyone.
Therefore, the mere fact that someone is convicted of disorderly conduct does not imply they were convicted of a domestic violence crime. All the justices agreed that this is clear enough in the Wisconsin statute.
That said, one justice urged the legislature to change the law. Either the disorderly conduct statute could be updated to include the use or threat of force as an element, or Wisconsin could prohibit firearms possession by people convicted of disorderly conduct.
When someone’s rights are at stake, every crossed ‘t’ and dotted ‘i’ matters. We do not surrender our rights unless every part of the law is satisfied. If the government wants to prohibit concealed carry by those convicted of disorderly conduct, it must do so explicitly.
Despite the state court ruling, it remains unclear if, despite a state CCW permit, the defendant would be free from prosecution by federal authorities who interpret the federal law differently.
