Doubek v. Kaul, 2020AP704

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBRIAN HAGEDORN, J.
Citation401 Wis.2d 575,973 N.W.2d 756,2022 WI 31
Parties Daniel DOUBEK, Petitioner-Appellant, v. Joshua KAUL, Respondent-Respondent.
Docket Number2020AP704
Decision Date20 May 2022

401 Wis.2d 575
973 N.W.2d 756
2022 WI 31

Daniel DOUBEK, Petitioner-Appellant,
Joshua KAUL, Respondent-Respondent.

No. 2020AP704

Supreme Court of Wisconsin.

Oral Argument: December 9, 2021
Opinion Filed: May 20, 2022

For the Petitioner-Appellant there were briefs filed by John R. Monroe and John Monroe Law, P.C. There was an oral argument by John R. Monroe.

For the respondent-respondent, there was a brief filed by Brian P. Keenan, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Brian P. Keenan.

HAGEDORN, J., delivered the majority opinion for a unanimous court. KAROFSKY, J., filed a concurring opinion.


973 N.W.2d 757
401 Wis.2d 577

¶1 Wisconsin law provides that an individual who is prohibited from possessing a firearm under federal law may not hold a license to carry a concealed weapon (CCW license). Federal law, in turn, prohibits firearm possession for anyone who has been convicted of a "misdemeanor crime of domestic violence" under state or federal law. In this case, we address whether a conviction for disorderly conduct under Wis. Stat. § 947.01(1) (2019-20)1 qualifies as a misdemeanor crime of domestic violence. We hold that disorderly conduct is not a misdemeanor crime of domestic violence under federal law, and therefore does not disqualify a person from holding a CCW license.


¶2 In 1993, Daniel Doubek broke into his estranged wife's trailer waving a 2x4 and shouting threats. He was convicted of disorderly conduct in violation of Wis. Stat. § 947.01(1) —a misdemeanor offense.2 More than two decades later, in 2016, Doubek

401 Wis.2d 578

applied for and received a CCW license from the Department of Justice (DOJ). In 2019, DOJ conducted an audit and determined that Doubek was prohibited from possessing a CCW license based on his 1993 misdemeanor conviction. According to DOJ, Doubek's conviction constituted a disqualifying "misdemeanor crime of domestic violence" under federal law. See 18 U.S.C. § 922(g)(9). DOJ revoked Doubek's CCW license and sent a letter notifying him of its decision. Doubek petitioned for judicial review pursuant to Wis. Stat. § 175.60(14m). The circuit court upheld DOJ's revocation of Doubek's CCW license.3 The court of appeals certified the case to us, and we accepted the certification.4


¶3 When DOJ revokes a CCW license, a reviewing court "shall reverse" if, among other reasons, DOJ "erroneously interpreted a provision of law and a correct interpretation compels a different action."

973 N.W.2d 758

Wis. Stat. § 175.60(14m)(f). We consider whether Doubek's revocation was consistent with § 175.60, the statute governing CCW licensing. That statute incorporates a

401 Wis.2d 579

federal firearms prohibition, which in turn relies on state penal law. Our interpretation of these statutes presents a question of law we review independently. Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35. In interpreting federal statutes, we are bound by the United States Supreme Court's interpretation. James v. City of Boise, 577 U.S. 306, 307, 136 S.Ct. 685, 193 L.Ed.2d 694 (2016) (per curiam).

A. CCW Licensing

¶4 CCW licensing in Wisconsin is regulated in large part though Wis. Stat. § 175.60. Among other things, this section governs when a CCW license shall or shall not issue, what an applicant must do to qualify for a license, when a licensee is authorized to carry a concealed weapon, and the processes DOJ must follow in administering the CCW program. Relevant here, § 175.60(3)(b) provides that DOJ may not issue a license to an individual that "is prohibited under federal law from possessing a firearm that has been transported in interstate or foreign commerce." And, if a prohibited individual holds a license despite that prohibition, § 175.60(14)(a) directs that DOJ "shall revoke a license issued under this section if the department determines that sub. (3)(b) ... applies to the licensee." Taken together, these provisions direct DOJ to deny or revoke a CCW license anytime federal law bars the would-be licensee from possessing a firearm.

B. Federal Misdemeanor Crime of Domestic Violence Prohibition

¶5 In this case, that federal law is 18 U.S.C. § 922(g)(9), which prohibits anyone convicted of a "misdemeanor crime of domestic violence" from possessing

401 Wis.2d 580

a firearm.5 A "misdemeanor crime of domestic violence" is not itself a standalone crime. Rather it refers to a class of crimes as defined one section earlier:

[T]he term "misdemeanor crime of domestic violence" means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A).

¶6 Doubek's crime was a misdemeanor under Wisconsin law, satisfying clause (i) of 18 U.S.C. § 921(a)(33)(A). Clause (ii) includes two criteria. United States v. Hayes, 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). First, the misdemeanor must "in fact" have been committed by someone who had a specified, domestic relationship with the victim. Id. This criterion depends on the facts underlying the conviction, not the elements of the

401 Wis.2d 581

charged misdemeanor.

973 N.W.2d 759

Id. at 426, 129 S.Ct. 1079. The victim of Doubek's crime was his wife, and thus, the first criterion is undisputed. Our focus is therefore on the second criterion of clause (ii).

¶7 The second criterion requires that the misdemeanor have "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon." 18 U.S.C. § 921(a)(33)(A)(ii). The key here is that the misdemeanor must have either the force component or the deadly weapon component as an essential element of the crime; this does not depend on the facts underlying any specific conviction. Hayes, 555 U.S. at 421, 129 S.Ct. 1079. Under this "categorical approach"—as the Court has termed it—the focus is "solely on whether the elements of the crime of conviction sufficiently match the elements" of the relevant federal statute, "while ignoring the particular facts of the case." Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). The question is thus whether the elements of the statutorily defined misdemeanor itself, apart from the facts giving rise to it, include the use of physical force, the attempted use of physical force, or the threatened use of a deadly weapon.

¶8 Sometimes the task of comparing elements is complicated by the use of a list in the statute defining the relevant misdemeanor. When that happens, the United States Supreme Court instructs us to determine whether the statute is indivisible or divisible, and then analyze whether the relevant elements match the applicable federal law. Id. at 504-06, 136 S.Ct. 2243.

¶9 An indivisible statute "sets out a single (or ‘indivisible’) set of elements to define a single crime." Id. at 504-05, 136 S.Ct. 2243. When an indivisible statute contains a list of alternatives, it "enumerates various factual

401 Wis.2d 582

means of committing a single element." Id. at 506, 136 S.Ct. 2243. Thus, a "jury could convict even if some jurors" thought the conduct satisfied one of the listed factual means while others concluded it satisfied another, "so long as all agreed" the conduct met one or more of the enumerated factual means. Id. Because an indivisible statute defines only one crime, no recourse to case records is needed to determine what type of conduct gave rise to the conviction. A court simply "lines up that crime's elements alongside those of the [federal law] and sees if they match." Id. at 505, 136 S.Ct. 2243. This is the standard application of the categorical approach. Id. at 504-05, 136 S.Ct. 2243.

¶10 Divisible statutes, on the other hand, "list elements in the alternative, and thereby define multiple crimes." Id. at 505, 136 S.Ct. 2243. When faced with a divisible statute, courts use a "modified categorical approach" and look "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. at 505-06, 136 S.Ct. 2243. The court then compares that specific crime to the relevant federal statute to see if they match. Id. at 506, 136 S.Ct. 2243.

¶11 In this case,...

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