868 N.W.2d 186
Wis. Ct. App.2015Background
- Police responded to a 3:31 a.m. disturbance call: Leonard had returned drunk, yelled at his wife, sent hostile texts, kicked in the locked back door, obtained a loaded .44 Magnum, and threatened to kill himself; officers found the loaded .44 Magnum in the garage and seized seven firearms, ammunition, and a smoke grenade.
- Leonard pled no contest to disorderly conduct (plea colloquy recited the complaint allegations) and did not appeal the conviction.
- Leonard moved under Wis. Stat. § 968.20(1) for return of the seized firearms and ammunition.
- The circuit court denied return, concluding (1) the disorderly conduct conviction qualified as a federal "misdemeanor crime of domestic violence" so 18 U.S.C. § 922(g)(9) barred possession, and (2) alternatively, Wis. Stat. § 968.20(1m)(b) barred return because the weapons were used in the crime.
- On appeal the court affirmed denial as to the .44 Magnum (finding it was used in the disorderly conduct), reversed as to the other firearms/ammunition (no evidence they were used), and reversed the § 922(g)(9) basis because the record does not resolve whether the force was "directed at" the victim.
Issues
| Issue | Plaintiff's Argument (Leonard) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the circuit court erred by sua sponte relying on Wis. Stat. § 968.20(1m)(b) (due process / notice) | Court’s sua sponte reliance deprived Leonard of opportunity to present evidence/argue Excessive Fines and related defenses | Leonard raised § 968.20(1m)(b) in his affidavit; court may consider issues sua sponte and gave effective notice | Denial was proper; no unfairness—Leonard had notice and opportunity but did not seek further hearing |
| Whether § 968.20(1m)(b) bars return of the .44 Magnum and the other seized firearms/ammunition ("used in the commission") | The .44 Magnum wasn’t "used" in the disorderly conduct (only role: in possession when he threatened suicide); other guns not used | The .44 Magnum was part of a course of violent, intimidating conduct; use includes conscious possession/ability to use; other items were not implicated | Affirmed as to the .44 Magnum (was used); reversed as to other guns/ammunition (no evidence they were used) |
| Whether Leonard’s disorderly conduct conviction qualifies as a "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A) (force directed at a domestic victim) | Kicking the door was force against an object, not directed at the spouse, so conviction does not have the requisite element vis-à-vis the domestic victim | Under Castleman and Evans, force need not be "violent"; force against an object can be "directed at" a person when part of a course of conduct intended to frighten/intimidate | Court rejected the categorical premise that force against an object can never be "directed at" a person, but the complaint and plea transcript permit competing reasonable inferences about intent; record insufficient to find the conviction is a misdemeanor domestic-violence crime—reversed as to § 922(g)(9) bar |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explains modified categorical approach to determine which statutory alternative formed the basis for a conviction)
- United States v. Castleman, 134 S. Ct. 1405 (2014) ("physical force" for § 922(g)(9) encompasses offensive touching; domestic-violence context may include minor force)
- Evans v. DOJ, 353 Wis. 2d 289 (Wis. Ct. App. 2014) (applied modified categorical approach to Wisconsin disorderly conduct; "violent" conduct implies use of physical force)
- State v. Perez, 244 Wis. 2d 582 (2001) ("use" of weapon includes conscious possession with ability to use)
- State v. Holmes, 315 N.W.2d 703 (Wis. 1982) (courts may consider issues sua sponte and should give parties notice/opportunity to respond)