973 N.W.2d 756
Wis.2022Background
- In 1993 Doubek broke into his estranged wife’s trailer with a 2x4 and made death threats; he was convicted of misdemeanor disorderly conduct under Wis. Stat. § 947.01(1).
- Doubek obtained a Wisconsin CCW license in 2016; a 2019 DOJ audit concluded his 1993 conviction was a federal "misdemeanor crime of domestic violence" and revoked his CCW license under Wis. Stat. § 175.60 incorporating 18 U.S.C. § 922(g)(9).
- DOJ treated the conviction as disqualifying under federal law; Doubek sought judicial review and the circuit court upheld DOJ’s revocation.
- The court of appeals certified the question to the Wisconsin Supreme Court, which considered whether § 947.01(1) is divisible and whether it has, as an element, use/attempted use of physical force or threatened use of a deadly weapon for purposes of 18 U.S.C. § 921(a)(33)(A).
- The Supreme Court held § 947.01(1) is an indivisible statute defining a single crime of disorderly conduct and that its elements do not necessarily include the use or attempted use of physical force or threatened use of a deadly weapon.
- Because disorderly conduct under § 947.01(1) is not categorically a "misdemeanor crime of domestic violence," DOJ’s revocation was based on an erroneous legal interpretation; the court reversed and remanded. Justice Karofsky concurred, urging legislative reform.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conviction under Wis. Stat. § 947.01(1) qualifies as a "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A) | Doubek: § 947.01(1) does not have as an element the use/attempted use of physical force or threatened use of a deadly weapon, so it is not a federal misdemeanor crime of domestic violence | DOJ/Kaul: Doubek’s conviction (described as violent and involving threats) falls within the federal definition and thus is disqualifying | Held: Not qualifying — the statute’s elements do not necessarily include force or threatened use of a deadly weapon, so it is not categorically a misdemeanor crime of domestic violence |
| Whether Wis. Stat. § 947.01(1) is divisible (allowing a modified categorical inquiry) or indivisible (requiring the categorical approach) | Doubek: The statute is indivisible and lists alternative means, not distinct offenses | DOJ: The "violent" variant can be treated as a separate, divisible offense (as argued in prior appellate decisions) | Held: Indivisible — the list in § 947.01(1) describes means of committing one offense, so the standard categorical approach applies |
| Whether DOJ properly revoked the CCW under Wis. Stat. § 175.60 by relying on the federal firearms prohibition | Doubek: Revocation rests on erroneous legal interpretation of federal law as incorporated by § 175.60 | DOJ: Revocation was proper because the prior conviction disqualified him under federal law | Held: DOJ erroneously interpreted the law; revocation reversed and remanded |
Key Cases Cited
- United States v. Hayes, 555 U.S. 415 (2009) (distinguishes element-based inquiry from fact-based domestic-relationship inquiry for § 921(a)(33))
- United States v. Castleman, 572 U.S. 157 (2014) (discusses scope of "physical force" in domestic violence context)
- Mathis v. United States, 579 U.S. 500 (2016) (explains categorical and modified categorical approaches and divisibility analysis)
- State v. Breitzman, 378 Wis. 2d 431 (Wis. 2017) (disorderly conduct elements discussed by Wisconsin courts)
- State v. Zwicker, 41 Wis. 2d 497 (Wis. 1969) (describes disorderly conduct as a two-element offense)