July 11, 2014 at 4:00 p.m.
Rhinelander man prevails in concealed carry lawsuit
Rhinelander man prevails in concealed carry lawsuit
If appealed, the ruling could impact state law and how future concealed carry license applications are processed, according to the man's lawyer, who said he was unaware of any other instances in which a judge in Wisconsin has reversed the denial of a concealed carry license application.
The decision, written by Oneida County Circuit Judge Patrick O'Melia, is also notable given the sheer number of concealed carry licenses issued in Wisconsin.
The state Department of Justice, which administers the state's concealed carry law, has received more than 235,000 applications for concealed carry licenses since the law went into effect in 2011.
Though the lawsuit was filed last year, the case dates back to 1995, when the plaintiff, Raymond von Bober, II, was charged with one misdemeanor count of disorderly conduct in Vilas County.
A police report alleged von Bober "grabbed his wife by her arms with enough pressure to cause pain, and then shoved her into the kitchen."
He pleaded no contest, was ultimately convicted and paid a forfeiture of $202.
He had no prior convictions and has had none since.
Fast-forward 16 years later. The state Legislature in 2011 enacted the state's concealed carry law, allowing qualified persons to possess a concealed firearm.
Under the law, DOJ must issue concealed carry licenses unless applicants can be disqualified for any one of seven specific reasons.
One such reason is based on a federal statute. Called the Lautenberg Amendment after its sponsor, former New Jersey Sen. Frank Lautenberg, the law criminalizes possession of a firearm or ammunition after conviction of a misdemeanor crime of domestic violence.
That definition requires, as an element of the crime, the use or attempted use of physical force or the threatened use of a deadly weapon.
In Wisconsin, for example, the definition of disorderly conduct has two elements. Under the first element, the defendant must have engaged in "violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct." The second element requires that the conduct tend "to cause or provoke a disturbance."
Citing von Bober's 1995 conviction under the disorderly conduct statute, DOJ denied his application for a concealed carry license in April 2013. He filed suit the same month.
This past June, O'Melia issued a decision: DOJ had erred, he concluded, and he ordered the department to issue von Bober a concealed carry license.
The 18-page ruling is highly technical, but the essence of it is that there is ambiguity as to the precise basis for von Bober's disorderly conduct conviction.
"It is unclear whether the basis of the Petitioner's conviction was 'violent' or 'otherwise disorderly,'" O'Melia wrote.
That haziness matters, according to O'Melia, because the Lautenberg Amendment restricts firearms based on the legal definition of a crime -- not the actual facts of the case.
Even though the police report in von Bober's disorderly conduct conviction alleged use of physical force in a domestic violence context, the legal issue centers around whether the crime he was convicted of -- misdemeanor disorderly conduct -- actually requires the use of physical force.
Importantly, prosecutors did not attach a domestic violence enhancer against von Bober.
But even if there was clarity as to what von Bober was charged with -- for instance, if he was charged only with "violent" conduct -- O'Melia raised questions as to whether that charge would necessarily trigger the Lautenberg Amendment, which covers the use or attempted use of physical force.
O'Melia noted there is no definition of the term "violent" in state statutes, and that the charge of "otherwise disorderly conduct" can include mere speech and written statements - acts that clearly do not require the use of physical force.
Those are reasons why von Bober's attorney, Mark Maciolek, of Madison, has argued that a misdemeanor disorderly conduct conviction can never be considered a misdemeanor crime of domestic violence under federal law, and therefore not a legitimate basis to deny a concealed carry license.
But he's had trouble convincing other judges. In a case similar to von Bober's, the state Court of Appeals affirmed the denial of a concealed carry license earlier this year. In that decision, out of Dane County, the court noted that violent conduct "necessarily implies the use of physical force," though the court did not cite any legal authority or written definition in making that finding.
And just this week, a separate Court of Appeals panel upheld another denial of a concealed carry license, reciting the finding that "violent conduct necessarily implies the use of physical force."
Maciolek said he was not surprised by the difference in legal conclusions between O'Melia and the appeals courts, noting "there's a lot of confused law out there."
Indeed, Tom Grieve, a Brookfield lawyer who specializes in Second Amendment law, said judges around the country are grappling with similar issues.
"It's a question that we're seeing litigated actually across the United States right now," Grieve said. "It's something that we're watching courts struggle with."
Grieve, who praised O'Melia's ruling, said the task was "like translating French into German." The process of applying the Lautenberg Amendment to state law, he said, is heavily dependent on parsing legal language and precise definitions.
"I do think that there are fair questions about what specific words and what specific things need to happen in Wisconsin cases to determine whether or not those federal qualifiers are actually met on a case by case basis," Grieve said.
Aside from the legal arguments, Maciolek said the state could help resolve similar disputes by ensuring prosecutors issue charges that are most congruent with the facts of the case. Lowering the seriousness of charges, he said, has consequences.
"If the prosecution wants to ensure that there are certain collateral consequences that go with a conviction, then they need to choose the right crime to accuse somebody of," Maciolek said in an interview.
Whether the Department of Justice will appeal O'Melia's ruling was unclear as of press time. DOJ spokesperson Dana Brueck said the agency has not yet made a decision on that question.
Brueck said she too was unaware of any other cases in which a judge in Wisconsin has reversed the denial of a concealed carry license.
Wisconsin circuit courts have upheld denials of concealed carry license applications in at least three cases, according to Brueck. Two of those cases were appealed, and appeals courts affirmed the denials. A court has also upheld the revocation of a concealed carry license. Two cases -- one a denial of an application, the other a revocation of a license -- remain pending in circuit courts.
Brueck declined to otherwise comment on O'Melia's ruling.
Maciolek said if DOJ does appeal, there's a chance the case could clarify whether disorderly conduct convictions can ever be used to deny concealed carry licenses.
Jonathan Anderson may be reached at [email protected].
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