Murphy Allan Thompson v. Wisconsin Department of Justice

Sep 1, 2026

2024AP002244, 2025AP000142

¶1 STARK, P.J. In these consolidated appeals, Murphy Allan Thompson, pro se, appeals from a circuit court order denying his petition for judicial review and affirming the Wisconsin Department of Justice‘s (the DOJ) decision to deny Thompson a renewal of his license to carry a concealed weapon (CCW license). Thompson also appeals from the court‘s denial of his motion for reconsideration of that order.

¶2 Thompson was previously granted a CCW license based on the DOJ‘s understanding that an expungement nullified a prior felony conviction. However, our supreme court made clear in State v. Braunschweig, 2018 WI 113, ¶25, 384 Wis. 2d 742, 921 N.W.2d 199, that an expungement does not vacate a conviction. As a result, the DOJ determined that Thompson‘s prior felony conviction disqualified him from being issued a CCW license and denied him renewal on that basis. For the reasons that follow, we reject Thompson‘s arguments on appeal and affirm the decisions of the circuit court and the DOJ.

BACKGROUND

¶3 In 2015, Thompson was convicted of a felony count of manufacture or delivery of tetrahydrocannabinols (THC) in Walworth County Case No. 2015CF293. Pursuant to the parties’ agreement, as approved by the circuit court, after Thompson successfully completed his sentence in that case, the record of his conviction was later expunged pursuant to WIS. STAT. § 973.015 (2023-24).¹

¶4 In February 2019, Thompson applied for and received a CCW license, which was valid for five years. See WIS. STAT. § 175.60(15)(a). In October 2023, the DOJ² sent Thompson a renewal notice, and Thompson submitted the required renewal application for his CCW license that was set to expire in February 2024. See § 175.60(15)(b). Based on its review of Thompson‘s renewal application, the DOJ determined that it could not issue a CCW license to Thompson because he was “prohibited from possessing a firearm under [WIS. STAT. §] 941.29” as a result of his felony conviction in Case No. 2015CF293. See § 175.60(3)(c), (9g)(a)2.-3., (15)(c). Therefore, the DOJ denied Thompson‘s renewal application.

¶5 Thompson petitioned for review of the DOJ‘s decision in the circuit court. See WIS. STAT. § 175.60(14m). The circuit court held an evidentiary hearing on the matter, during which it took testimony from Thompson and heard arguments from the parties. Ultimately, the court denied Thompson‘s request to overturn the DOJ‘s refusal to renew Thompson‘s CCW license. Relying on our supreme court‘s decision in Braunschweig, the circuit court explained that it “cannot order the DOJ to issue a license which contravenes the law” and that “[t]he law is clear that you are not allowed to possess firearms even if” your conviction has been “expunged.” The court issued a written order memorializing its oral ruling.

¶6 Thereafter, Thompson filed a motion for reconsideration of the circuit court‘s order. Thompson argued that the denial of his CCW license renewal application violated the terms of his plea agreement in Case No. 2015CF293 because “[h]e settled with the prosecutor‘s offer because of his understanding that the conviction would be removed from his criminal record after he completed his sentence, and the expunction would restore his firearms rights.” He also argued that the DOJ‘s decision violated the Ex Post Facto and Double Jeopardy Clauses of the Wisconsin Constitution.

¶7 The circuit court held a second evidentiary hearing on Thompson‘s motion for reconsideration, during which it again took testimony from Thompson, admitted written evidence into the record, and heard arguments from the parties. The court, ultimately, denied Thompson‘s motion for reconsideration, rejecting each of Thompson‘s arguments. Thompson appeals.

DISCUSSION

¶8 On appeal, Thompson argues that the circuit court erred by refusing to reverse the DOJ‘s decision denying him renewal of his CCW license for several reasons, including because the DOJ failed to follow the procedure under WIS. STAT. § 175.60(15)(b); the DOJ applied the holding in Braunschweig too broadly; the DOJ cannot retroactively take away his firearm rights; and there was sufficient evidence in the record demonstrating that the denial violated the terms of his plea agreement. According to Thompson, the DOJ improperly “leaned on the Wisconsin Supreme Court statement in” Braunschweig when it determined, “as a matter of law, [that] Thompson is not allowed to possess firearms.” To the contrary, Thompson contends that

for nearly 10 years prior to the Braunschweig decision, as a matter of law, the DOJ allowed people with expungements, like Thompson, to lawfully possess a firearm. During that time period both the legislature and the courts recognized that an expungement is a special disposition not a conviction. It gives young people a clean slate, or should we say a second chance, and since they are specifically adjudged not to be a danger to the public, they are not tossed aside with no chance to possess a firearm. Braunschweig didn‘t change that.

¶9 On review of the DOJ‘s decision under WIS. STAT. § 175.60, a reviewing court “‘shall reverse’ if, among other reasons, [the] DOJ ‘erroneously interpreted a provision of law and a correct interpretation compels a different action.‘” Doubek v. Kaul, 2022 WI 31, ¶3, 401 Wis. 2d 575, 973 N.W.2d 756 (quoting § 175.60(14m)(f)). Whether a firearm restriction applies is a matter of statutory interpretation, which is a question of law. Id. We also review de novo the effect of an expungement under our statutes. See Braunschweig, 384 Wis. 2d 742, ¶9.

¶10 We begin with the language of the statutes. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“[S]tatutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.‘” (citation omitted)). Pursuant to WIS. STAT. § 175.60(2)(a), the DOJ “shall issue a license to carry a concealed weapon to any individual who is not disqualified under sub. (3) and who completes the application process specified in sub. (7).” (Emphasis added.) The particular disqualifying event under § 175.60(3) that is applicable here is found in paragraph (3)(c), which states that the DOJ cannot issue a CCW license if an “individual is prohibited from possessing a firearm under [WIS. STAT. §] 941.29.” Section 941.29(1m)(a) states that “[a] person who possesses a firearm is guilty of a Class G felony if any of the following applies: (a) The person has been convicted of a felony in this state.” (Emphasis added.)

¶11 Considering the plain language of the above statutes, we conclude that the DOJ correctly denied Thompson‘s application for renewal of his CCW license. It is undisputed that Thompson has been convicted of a felony in Wisconsin. Therefore, he is prohibited from possessing a firearm under WIS. STAT. § 941.29(1m)(a) and, as a result, is also disqualified from being issued a CCW license under WIS. STAT. § 175.60(3)(c).

¶12 The only circumstance under which this determination would or could be altered is if Thompson was no longer considered to be “convicted of a felony.” See WIS. STAT. § 941.29(1m)(a). As noted above, Thompson‘s felony conviction was expunged pursuant to WIS. STAT. § 973.015,³ and he reasons that, as a result of the expungement, he should not be “consider[ed] … a convicted felon today after he was adjudicated by the court not to be a danger to the public under the expungement statute and was able to possess a firearm for the last 5 years.” Our supreme court‘s decision in Braunschweig clarified, however, that “while the expunction of court records of a conviction is intended to benefit a young offender, one of the benefits is not that the underlying conviction is vacated. Therefore, under a plain meaning analysis, a conviction, even though expunged, remains ‘an unvacated adjudication of guilt.‘”⁴ Braunschweig, 384 Wis. 2d 742, ¶25. In other words, despite the court record being destroyed, Thompson is still considered to have been convicted of the crime. Therefore, because Thompson “has been convicted of a felony,” and that conviction has not been vacated,⁵ the DOJ correctly denied his application for a CCW license, see WIS. STAT. §§ 175.60(3)(c), 941.29(1m)(a), and the circuit court properly denied his petition for judicial review.

¶13 Thompson mounts several well-considered arguments against our conclusion here, but they ultimately fail to persuade us. First, he asserts that he is entitled to renew his CCW license because he complied with all of the requirements in WIS. STAT. § 175.60(15)(b). According to Thompson, § 175.60(15)(b) “is a distinct renewal procedure with a separate form which compels a different level of review than the initial application.” By comparing § 175.60(7)(b) and (15)(b)2.—the former of which requires an applicant to present “[a] statement that states that the information that he or she is providing … is true and complete to the best of his or her knowledge,” and the latter of which requires “a statement reporting that the information provided … is true and complete to the best of his or her knowledge and that he or she is not disqualified under sub. (3)“—Thompson interprets the renewal statute to mean that “as long as Thompson satisfied” § 175.60(15)(b), “and the background check revealed nothing different than before, the DOJ shall renew the license.” Accordingly, Thompson contends that because he “submitted a true statement that he was not disqualified under sub. (3) because he was in possession of a valid CCW License,” the DOJ was required to renew his license, and the circuit court erred by “not following the law under [§] 175.60(15)(b).” (Emphasis added.)

¶14 Thompson‘s argument is an attempt to create statutory conflict that does not exist. WISCONSIN STAT. § 175.60(15)(b) does not contain any language stating that the DOJ shall renew a CCW license so long as “the background check revealed nothing different than before.” Therefore, Thompson‘s argument adds words to the statute that the legislature did not see fit to include. Instead, as the DOJ emphasizes, it “must still conduct a background check of all renewal applicants,” see § 175.60(15)(c), “which must determine (among other things) whether the applicant ‘is prohibited from possessing a firearm under [WIS. STAT. §] 941.29,‘” see § 175.60(9g)(a)2., and if the individual is prohibited from possessing a firearm, the DOJ “may not issue a license” to them, see § 175.60(3)(c). In other words, the DOJ does not merely rely on the applicant‘s own assertion “that he or she is not disqualified under sub. (3).” See § 175.60(15)(b)2. Rather, the DOJ must conduct its own investigation and deny renewal to those CCW license applicants with disqualifying criminal convictions. As Thompson remains convicted of a felony, despite its expungement, see Braunschweig, 384 Wis. 2d 742, ¶25, and despite the DOJ‘s prior interpretation of § 175.60 that led to Thompson initially receiving a CCW license, he cannot renew his CCW license.

¶15 Further, Thompson fails to properly acknowledge that the DOJ‘s initial grant of a CCW license to Thompson does not trump the provisions of WIS. STAT. § 175.60 or our supreme court‘s interpretation in Braunschweig.⁶ Said differently, the fact that Thompson was in possession of a valid CCW license at the time he submitted his renewal application is of no consequence because that is not what the statute means by the phrase “not disqualified.” See § 175.60(2)(a). His prior CCW license was not a talisman that protects against the correct application of the statute.

¶16 Next, Thompson challenges the application of Braunschweig to his situation, arguing that the case “did not overturn the longstanding interpretation of law that an expungement under WIS. STAT. § 973.015 does not count as a conviction when it comes to possession of a firearm.” (Formatting altered.)

According to Thompson, ”Braunschweig clarified that an expungement doesn‘t invalidate a conviction; however, that is as far as it goes.” He argues “that the legislature clearly made a distinction between a young person who has been adjudged guilty as a youthful offender, and a person who has been ‘convicted of a crime,‘” and because “Thompson was found guilty” pursuant to “an alternative judgement which has historically been distinguished as not a conviction,” “Thompson cannot possibly be considered a ‘convicted felon.‘” Therefore, Thompson faults the circuit court for failing to “harmonize[] … the plain language of the law, the historical perspective of the expungement statute, the legislative actions (or lack thereof), and the fact that for nearly a decade, a person with an expunged felony, like Thompson, was not disqualified from possessing a firearm.”

¶17 Initially, we note that Thompson‘s position focuses on what he sees as a distinction between a “youthful offender” and a convicted criminal and seeks to harmonize that distinction with Braunschweig‘s holding. However, the “youthful offender” designation was a product of the Youthful Offenders Act, which has since been repealed and is no longer good law. See State v. Leitner, 2002 WI 77, ¶37, 253 Wis. 2d 449, 646 N.W.2d 341 (stating that the “Wisconsin Youthful Offenders Act” is now repealed). As a result, the alleged distinctions between a “youthful offender” and a convicted criminal that Thompson—who was an adult when he committed his crime—relies on to support his argument are no longer relevant and have no bearing on the issue before us.⁷

¶18 In support of his position, Thompson also relies on State v. Anderson, 160 Wis. 2d 435, 466 N.W.2d 681 (Ct. App. 1991). In that case, we determined, on a postconviction challenge to a conviction, that “evidence of a conviction expunged under [WIS. STAT. §] 973.015(1) [(1989-90)], is not admissible under [WIS. STAT. §] 906.09(1) [(1989-90)], to attack the credibility of a witness.” Id. at 437. We explained that “[t]he purpose of the Youthful Offenders Act was to shield qualified youthful offenders from some of the harsh consequences of criminal convictions,” and, therefore, “[w]e conclude[d] that [§ 973.015(1) (1989-90)] provides a means by which trial courts may, in appropriate cases, shield youthful offenders from … the use of criminal convictions for impeachment purposes under [§] 906.09(1) [(1989-90)].” Id. at 440-41.

¶19 Anderson is inapplicable here for several reasons. First, in Anderson, we were interpreting WIS. STAT. § 906.09, which is not at issue in this case. Second, Anderson‘s holding does not otherwise aid our analysis because the issue of what evidence can be presented to a jury is fundamentally different from the issue of who is eligible to carry a concealed weapon. Third, since Anderson, our supreme court has consistently rejected the idea that youthful offenders should always be protected from the harsh consequences of their actions. For example, Leitner and Braunschweig clarified that expungement does not require the destruction of all records of the conviction and that expungement is not equal to vacatur, respectively. Leitner, 253 Wis. 2d 449, ¶41 (“[W]e conclude that the words of WIS. STAT. § 973.015[ (1999-2000)], as well as its legislative history, context, and purpose, point to the conclusion that the legislature intended … to authorize the expunction of court records only, not other records, when the conditions set forth in [the statute] are met.“); Braunschweig, 384 Wis. 2d 742, ¶25.⁸

¶20 Next, Thompson asserts that “[e]ven if” Braunschweig “overturn[ed] the longstanding interpretation” of WIS. STAT. § 973.015, “it cannot be applied retroactively” because denying him a CCW license violates the Ex Post Facto Clause of the Wisconsin Constitution.⁹ (Formatting altered.) In support of this argument, he cites State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994), which held that

an ex post facto law, prohibited by the Wisconsin Constitution, is any law: “which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed.”

Id. at 703 (citation omitted). According to Thompson, “[t]he DOJ‘s new rule under the effect of the Braunschweig decision turns Thompson‘s lawful possession of a firearm into a crime and makes the sentence he received more burdensome.” (Formatting altered.)

¶21 We reject Thompson‘s ex post facto argument on the basis of the exact case on which he relies: Thiel. There, our supreme court resolved this question when it held that the legislature did not have a punitive intent when it enacted WIS. STAT. § 941.29 (1993-94): “There is no evidence that the principal purpose of [§] 941.29 [(1993-94)] is punishment, deterrence or retribution. Rather, our examination of [§] 941.29 [(1993-94)], in its entirety, leads us to conclude that the statute was aimed not at punishment but at protecting public safety through firearm regulation.” Thiel, 188 Wis. 2d at 706-07. Thus, Thiel‘s holding is fatal to Thompson‘s argument that the application of § 941.29 to deny him a CCW license is an ex post facto violation.

¶22 Thompson seeks to distinguish Thiel, however, by arguing that because the circuit court that sentenced him found that “society will not be harmed” when it granted him expungement under WIS. STAT. § 973.015, see § 973.015(1m)(a)1., Thiel‘s “public safety” rationale is not applicable here, see Thiel, 188 Wis. 2d at 707. Thompson‘s argument incorrectly conflates these two concepts. The finding required under § 973.015 is a procedural requirement under the expungement statute. It is not an adjudication by the court of an individual‘s future ability to safely carry a concealed weapon. Thompson fails to cite any legal authority in support of the idea that these two concepts are in any way related. More importantly, even if we could accept that a connection exists, one circuit court‘s finding under § 973.015 cannot usurp the legislature‘s categorical public safety mandate under WIS. STAT. §§ 175.60 and 941.29. The fact that the law is now being correctly applied to Thompson is not a punishment; therefore, he is not subject to an ex post facto law.

¶23 Finally, Thompson attempts to collaterally attack his conviction in Case No. 2015CF293. According to Thompson, he “provided testimony [to the circuit court] that he was told [during plea negotiations that] his firearm rights would be restored once his conviction was expunged.” Accordingly, he argues that “[t]here was sufficient evidence in the record for the court to determine that Thompson‘s plea agreement included his right to possess firearms once the expungement order was issued,” and, therefore, the court erred by failing to “uphold the agreement and reverse the DOJ‘s denial of his CCW [license] renewal.” (Formatting altered.)

¶24 Thompson‘s attempt to collaterally attack his previous conviction fails for several reasons. First, and foremost, even if we assume, without deciding, that the prosecutor in Thompson‘s criminal case made a statement during plea negotiations regarding a firearm restriction, that fact would not change whether the firearm restriction applied to Thompson, which is a matter of statutory interpretation. See Doubek, 401 Wis. 2d 575, ¶3. In other words, the prosecutor could not contract away a statutory firearm restriction within a plea agreement. Further, to the extent that the prosecutor may have made a statement to Thompson regarding the legal effect of the conviction or expungement with regard to firearm rights, any such statement was entirely a legal opinion, which the decision in Braunschweig would have superseded.

¶25 Most importantly, an administrative appeal of a CCW license denial is an improper forum in which to collaterally attack a prior criminal conviction. Thompson‘s exclusive remedy for any alleged breach of his plea agreement is a postconviction motion in the underlying criminal case.¹⁰ See State v. Williams, 2002 WI 1, ¶38, 249 Wis. 2d 492, 637 N.W.2d 733 (“When the breach is material and substantial, a plea agreement may be vacated or an accused may be entitled to resentencing. A material and substantial breach is a violation of the terms of the agreement that defeats the benefit for which the accused bargained.” (footnote omitted)); see also State v. Brown, 2004 WI App 179, ¶8, 276 Wis. 2d 559, 687 N.W.2d 543 (“Wisconsin courts have permitted defendants to withdraw pleas that were based on a misunderstanding of the consequences, even when those consequences were collateral.“).

By the Court.—Orders affirmed.

Not recommended for publication in the official reports.

Notes

All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.

The DOJ is charged with reviewing applications and issuing CCW licenses. See WIS. STAT. § 175.60(1)(b), (2).

WISCONSIN STAT. § 973.015, entitled “Special disposition,” governs expunged convictions in this state. The statute, which is generally applicable to “a person [who] is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less,” subject to certain exceptions, grants circuit courts the discretionary authority to “order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.” Sec. 973.015(1m)(a)1. “A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation.” Sec. 973.015(1m)(b). “If a record of conviction is expunged, the court records for that case are destroyed by the clerk of court.” . However, “the record referred to in … § 973.015 is a court record and … § 973.015 does not direct district attorneys or law enforcement agencies to expunge their records documenting the facts underlying an expunged record of a conviction.” . Further, “the circuit court may consider, when sentencing an offender, the facts underlying a record of conviction expunged under § 973.015.”

As relevant here, involved the question of “whether a prior expunged [operating a motor vehicle while intoxicated (OWI)] conviction constitutes a prior conviction under WIS. STAT. § 343.307(1), when determining the penalty for OWI-related offenses.” . Our supreme court compared the expungement statute with a criminal sentence being vacated, noting that “[v]acatur, unlike expunction, removes the fact of conviction.” . “Vacatur invalidates the conviction itself, whereas expunction of a conviction merely deletes the evidence of the underlying conviction from court records. Expunction, unlike vacatur, does not invalidate the conviction.” . Accordingly, the court held that a prior expunged conviction “must be counted for purposes of supporting a prior conviction in OWI-related offenses.” .

In his reply brief, Thompson asserts that “[t]here is no Wisconsin law that says Thompson‘s expunged conviction must be vacated for him to possess firearms.” Thompson‘s argument misunderstands how the law operates. The law creates a baseline firearm restriction on felons. See WIS. STAT. §§ 175.35(2g)(c)4.a., 175.60(3)(c), 941.29(1m)(a). Thompson cannot avoid the result of that default rule by arguing the absence of a law requiring vacatur. To avoid the firearm ban, he must identify how the default rule would not apply to him such that his rights would be restored—e.g., a criminal sentence being vacated or a pardon. See § 941.29(5). Because an expungement does not remove the fact of the felony conviction, the firearm ban remains applicable to Thompson.

Thompson attaches significance to the fact that on March 6, 2019, the Wisconsin Attorney General sent an email to the Wisconsin Legislature “request[ing] that [it] consider modifying, as soon as feasible, Wisconsin law to address the effect that expungement of a felony conviction … has on an individual‘s ability to lawfully possess a firearm under Wisconsin law.” Thompson suggests that the decision could not have possibly “clarified the law” if, after that decision, the DOJ asked the legislature to clarify that “expungement disqualifies a person from possessing a firearm.” The DOJ explains, however, that Thompson mischaracterizes the email because it actually “said [that the DOJ] was ‘available to consult’ if the Legislature was interested ‘in address[ing] this issue by modifying Wisconsin law,’ i.e. if it wanted to change the law such that expungements would remove the effects of the conviction.” (Second alteration in original.) Regardless, we are not persuaded by Thompson‘s argument because an email is not legal authority; the attorney general‘s description of the state of the law therein coincides with our interpretation here; and the legislature did not, ultimately, seek to modify the law.

In , our supreme court considered whether WIS. STAT. § 973.015 (1999-2000) required district attorneys and law enforcement agencies to expunge their records and whether a circuit court could consider the facts underlying an expunged conviction at sentencing. . The court explained that § 973.015 (1999-2000) “was enacted as a companion to the Wisconsin Youthful Offenders Act” and that “both statutes were intended to provide a break to young offenders who demonstrate the ability to comply with the law,” but “nothing in the language or history of § 973.015 [(1999-2000)] indicates that the legislature intended record expunction … to wipe away all information relating to an expunged record … or to shield a misdemeanant from all of the future consequences of the facts underlying a record of a conviction.” .

Thompson also relies on the fact that WIS. STAT. § 973.015 uses the phrase “special disposition,” arguing that “[t]he legislature used special disposition to distinguish it from a conviction because they are not the same.” He reasons that “[i]f a special disposition was a conviction for a crime, it would be a basis for a claim under [WIS. STAT. §] 775.05.” See § 973.015(3). However, as the State correctly notes, the prohibition in § 973.015(3) “means that an expungement cannot serve as the basis for a claim for compensation made by ‘innocent persons who have been convicted of a crime,‘” see § 775.05(1), which “is entirely consistent with the conviction remaining valid because someone granted an expungement remains convicted and is therefore not innocent.”

Thompson does not specify if his argument is based on the Wisconsin Constitution or the United States Constitution. However, because he cites , in support of his argument, we will assume his argument is based on the Wisconsin Constitution.

We recognize that because Thompson‘s expungement has resulted in the destruction of the circuit court record in his criminal case, our decision places Thompson in a position where he may be unable to obtain a firearm through collateral relief.