Evans v. Wis. Dep't of Justice

• Decision Date: 27 February 2014
• Docket Number: No. 2013AP816.,2013AP816.
• Citation: 2014 WI App 31,353 Wis.2d 289,844 N.W.2d 403
• Parties: Robert W. EVANS, Jr., Petitioner–Appellant, v. WISCONSIN DEPARTMENT OF JUSTICE, Respondent–Respondent.
• Court: Wisconsin Court of Appeals

353 Wis.2d 289

844 N.W.2d 403

2014 WI App 31

Robert W. EVANS, Jr., Petitioner–Appellant,

v.WISCONSIN DEPARTMENT OF JUSTICE, Respondent–Respondent.

No. 2013AP816.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 9, 2013.

Opinion Filed Feb. 27, 2014.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Mark P. Maciolek of Murphy Desmond, S.C., Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of Bruce A. Olsen, assistant attorney general, and J.B. Van Hollen, attorney general.

Before LUNDSTEN, SHERMAN and KLOPPENBURG, JJ.

LUNDSTEN, J.

¶ 1 Robert W. Evans, Jr., appeals the circuit court's order upholding the Wisconsin Department of Justice's decision to deny Evans' application for a license to carry a concealed weapon. The denial was based on the Department's conclusion that Evans' 2002 conviction for disorderly conduct was a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33) (A). We agree with the Department's conclusion and, therefore, affirm. There is no dispute that, if Evans' conviction qualifies, the Department properly denied his application for a permit.

¶ 2 As pertinent here, 18 U.S.C. § 921(a)(33)(A) requires that the qualifying crime have, “as an element,” the use of physical force. It also requires that the crime be committed by a person who has at least one of several specified relationships with the victim. The specified relationships include “similarly situated to a ... parent ... of the victim.” 18 U.S.C. § 921(a)(33)(A)(ii). We conclude that Evans' conviction meets the first requirement because he was convicted of a disorderly conduct that had, as an element, “violent, abusive, and otherwise disorderly” conduct. We further conclude that Evans' conviction meets the second requirement because he was “similarly situated to a ... parent” of the victim.

Background

¶ 3 The necessary background facts are few and undisputed and, for the most part, are stated above. We reference additional facts as needed in the discussion below.

Discussion

¶ 4 Under 18 U.S.C. § 922(g)(9), it is “unlawful for any person ... who has been convicted ... of a misdemeanor crime of domestic violence ... [to] possess in or affecting commerce, any firearm or ammunition.” See United States v. Hayes, 555 U.S. 415, 420, 426, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). Federal law defines a “misdemeanor crime of domestic violence” for this purpose as 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); see also Hayes, 555 U.S. at 420–21, 129 S.Ct. 1079. Our focus here is on part (ii) of this definition.

¶ 5 The Supreme Court in Hayes interpreted part (ii) as having two requirements. Specifically, the offense at issue must:

(1) “[have], as an element, the use [of force],” and

(2) [be] committed by a person who has a specified domestic relationship with the victim.

Hayes, 555 U.S. at 426, 129 S.Ct. 1079 (second alteration in Hayes ).

¶ 6 Evans argues that neither requirement is met here. We address each requirement below, and conclude that both requirements are met.

¶ 7 As a preliminary matter, the parties dispute our standard of review. Evans argues that we should apply de novo review to the Department's denial of his permit. The Department argues that we should apply due weight deference. We need not resolve this dispute because the standard of review does not affect the outcome. That is, even if we were to apply a de novo standard of review, we would agree with the Department's conclusion that Evans' disorderly conduct conviction qualifies as a “misdemeanor crime of domestic violence.”

1. First Requirement: Has, “As An Element,” The Use Of Physical Force

¶ 8 We turn to the first requirement, whether Evans' disorderly conduct conviction has, “as an element,” the use of physical force. On this topic, we agree with the circuit court and the Department that Evans' conviction for disorderly conduct has the use of physical force as an element. We first provide a general summary of our reasoning, and then explain our reasoning in further detail in the course of rejecting Evans' more specific arguments.

¶ 9 The disorderly conduct statute provides that

[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

Wis. Stat. § 947.01(1).¹

¶ 10 Generally speaking, disorderly conduct has two elements: (1) engaging in conduct of a type or types enumerated, and (2) doing so under circumstances in which that conduct tends to cause or provoke a disturbance. Although there may be different ways to state the first element,² what is clear is that the first element need not consist of all seven types of listed conduct (“violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly”). Rather, the first element allows for alternatives.

¶ 11 For example, a person could be charged with engaging in violent conduct under circumstances that tend to cause or provoke a disturbance and be convicted of disorderly conduct based solely on that charge. In this example, the first element is that the person engaged in violent conduct. To take further examples, the first element could be “indecent and profane” conduct, or it could be “indecent or profane” conduct. In sum, alternative types of first-element conduct may be charged singly, in the conjunctive, or in the disjunctive.

¶ 12 Here, Evans was convicted of disorderly conduct based on a first element specified as “violent, abusive and otherwise disorderly conduct.” ³ Because “violent” conduct necessarily implies the use of physical force, we conclude that Evans' conviction for disorderly conduct has the use of physical force as an element.

¶ 13 We turn now to Evans' specific contrary arguments. We observe that each of his arguments, if accepted, would mean that a Wisconsin disorderly conduct conviction never qualifies as a misdemeanor crime of domestic violence regardless of how the crime is charged, how the elements are stated for purposes of a plea, or how a jury is instructed. We question whether that would be a reasonable result, but we need not decide if it could be. As explained below, there are other reasons to reject Evans' individual arguments.

¶ 14 Evans concedes that some crimes are defined as having alternative elements such that the crime may or may not have the use of physical force as an element, depending on which alternative is the basis for a conviction. See United States v. Evans, 576 F.3d 766, 767–69 (7th Cir. 2009) (defendant charged with the second alternative of the Illinois crime of “ intentionally or knowingly without legal justification and by any means, (1) caus[ing] bodily harm to an individual or (2) mak[ing] physical contact of an insulting or provoking nature with an individual,” is not charged with “crime of violence”). Evans apparently contends, however, that disorderly conduct is not such a crime. He asserts that the different types of conduct listed in Wis. Stat.. § 947.01(1) never serve as alternative elements. Rather, Evans seems to argue that the different types of conduct listed in the disorderly conduct statute are alternative “manner[s] and means” of committing the first element of the crime. If this is Evans' argument, we are not persuaded.

¶ 15 The “manner and means” discussions in the cases Evans relies on use that phrase as a reference to the specific conduct a defendant engages in to commit a charged crime. See, e.g., United States v. Calderon–Pena, 383 F.3d 254, 257 n. 4 (5th Cir.2004) (throwing a bottle at a person is not an element, but rather a “manner” of violating the crime of disturbing the peace). Evans points to nothing in these “manner and means” discussions that conflicts with our conclusion that Wisconsin's disorderly conduct statute can have the use of physical force as an element, such as where the “violent” alternative is charged alone or in the conjunctive with other alternatives.⁴

¶ 16 In what appears to be a variation on his elements-versus-means-of-commission argument, Evans argues that the disorderly conduct statute is not “divisible,” or at least not divisible in a sense that matters. Evans makes a distinction between “factualdivisibility” and “legal divisibility.” This argument, too, is inadequately supported. The cases that Evans offers in support do not address different types of “divisibility.” See generally United States v. Woods, 576 F.3d 400 (7th Cir.2009); United States v. Smith, 544 F.3d 781 (7th Cir.2008); United States v. Hays, 526 F.3d 674 (10th Cir.2008); United States v. Sperberg, 432 F.3d 706 (7th Cir.2005). Only one of the cases speaks in terms of “divisibility,” and it does so in a way that undercuts Evans' position. Specifically, in Woods the court said that a “divisible” statute is a statute that “expressly identifies several ways in which a violation may occur” or that “creates several crimes or a single crime with several modes of commission.” Woods, 576 F.3d at 406, 411. This description in Woods is an apt description of disorderly conduct, which, in the words of Woods, “ identifies several ways in which a violation may occur.” See id. at 406.

¶ 17 Evans also relies on federal case law discussing the “categorical approach” or the “modified categorical approach,” a methodology the courts use to determine whether a crime is “vi...