Wisconsin's Domestic Abuse Enhancer and the Federal Ban on Firearms for Those Convicted of a Misdemeanor Crime of Domestic Violence - related but not coextensive

Misdemeanor convictions can have serious, life-long consequences, including loss of firearm rights!

Wisconsin has three classifications for law violations.

• The most serious of these is the Felony, which carries with it the possibility of incarceration in state prison. A conviction for a felony carries with it a loss of certain civil rights including the right to possess a firearm and the right to vote.
• The least serious is the civil violation. The typical speeding ticket is a civil violation. An OWI - 1st offense ticket is normally a civil violation, although it stays on your record for life. Civil violations usually carry monetary penalties called forfeitures (not fines).
• The middle level is Misdemeanor. This means a crime for which there is a potential jail penalty or a fine. Misdemeanor convictions, though, often carry what are called "collateral consequences." Such collateral consequences are penalties that the state legislature does not attach to the crime but that someone else (often the Federal Government) imposes.
• The 2022 U.S. Supreme Court Decision in Bruen likely did not change this.

Domestic Abuse under Wisconsin Law

For most people, the term "domestic abuse" means spousal abuse, i.e. "wife beating." Wisconsin's definition is far broader. For a crime to be considered one of "domestic abuse" in Wisconsin:

1. The crime must be one of those specified in Sec. 973.055 of the Wisconsin Statutes. Those crimes include murder and battery, but also disorderly conduct and misuse of a telephone.
2. No one has to be injured (although injury can be a part of such a crime).
3. There is no requirement for the surcharge that there be use or attempted use of physical force (although battery does require this).
4. There is no requirement that the crime involve the use of a deadly weapon.
5. The people involved may be adult siblings
6. The people involved may be adult child and parent
7. The crime must involve at least two people
8. Those two people must have lived in the same household, or
9. Those two people must have had a dating relationship, or
10. Those two people must have a child together

This interacts with various other laws such that a misdemeanor conviction can:

1. Lead to deportation and/or exclusion from admission to the country for non-citizens whether or not legally in the country.
2. Lead to a lifetime ban on firearms possession. This page is about that consequence.

Further, in Wisconsin, the domestic abuse enhancer can apply to any of the types of law violations listed: Felonies, misdemeanors, and (non-criminal) ordinances. This enhancer is only applied when both the nature of the offense and the relationship between the parties is brought to the attention of the court, usually in the charging document.

The Wisconsin criteria are set forth in Sec. 973.055 of the Wisconsin Statutes.

Misdemeanor Crimes of Domestic Abuse - The Lautenberg Amendment

A Federal law imposes a lifetime gun possession ban on people convicted of what is labeled a "misdemeanor crime of domestic violence." That law is explained to US Attorneys in this fact sheet: Criminal Resource Manual on Misdemeanor Crimes of Domestic Violence. Specifically:

1. It only applies to misdemeanor crimes. Ordinance violations in Wisconsin are not crimes. There is already a firearms restriction for those convicted of felonies.
2. No specific crimes are listed because this covers all states.
3. No one has to have been injured but the charged misdemeanor must have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.
4. Adult siblings are not covered.
5. A crime committed by an adult child against a parent is not covered.
6. The crime must involve two people.
7. A crime committed by one roommate against another is not covered, unless they were involved in a sexual or romantic relationship.

The Wisconsin Supreme Court decided in the case of Doubek v. Kaul 2022-WI-35 that, in Wisconsin, Disorderly Conduct is not crime of Domestic Violence because violence is not a required element of the crime. "Physical force" under the Lautenberg Amendment is defined as any offensive touching. United States v. Castleman 572 U.S. 157 (2014). Neither Disorderly Conduct nor Criminal Damage to Property, which are often charged as domestic abuse misdemeanors in Wisconsin, have an element of physical force under this definition.

It is also possible that if the person had been convicted without a lawyer, that this would not apply. The Lautenberg Amendment requires that any waiver of the right to counsel be made after a full on-the-record discussion of the implications of such a waiver. The 2022 U.S. Supreme Court Decision in Bruen likely did not change the effects of the Lautenberg Amendment.

Conclusion

Although compared to a Felony conviction, a misdemeanor conviction is "minor," in the life of a person, especially one without a prior criminal conviction, a conviction for a misdemeanor can be devastating. If the charge is one that of the type specified under the Lautenberg Amendent one of those collateral consequences will be permanent loss of firearms rights throughout the United States. The judge is not required to warn a defendant of this potential consequence. Anyone facing such a charge needs competent, experienced representation.

See also: Gun Rights and Domestic Violence Crimes in Wisconsin - Firearms Rights

It's Only a Misdemeanor - Collateral Consequences of Misdemeanor Convictions

Wis. Dept. of Justice on Concealed Carry

Charles Kyle Kenyon - When Experience Matters Zoom Court Appearance Information Attorney at Law 5555 Odana Road, Suite 211 Madison, WI  53719-1280 Telephone (608) 308-9645 Since 1979 Former (Elected) District Attorney Former Assistant State Public Defender Extensive jury trial experience in cases ranging from traffic to sexual assault / homicide Thousands of criminal cases since 1979 Appeals in Wisconsin Court of Appeals and Supreme Court J.D. University of Wisconsin Law School 1978 - winner of Abe Sigman prize B.A. University of Wisconsin - Madison - Psychology - 1975 Trainer / presenter / panelist for American Bar Association, National College of District Attorneys, Wisconsin Department of Justice, Wisconsin Public Defender Founding Director - Children's Law Section - State Bar of Wisconsin Past-President: Marinette County Bar Association, Door-Kewaunee Bar Association Life Member: National Association of Criminal Defense Lawyers (NACDL) Member: Wisconsin Association of Criminal Defense Lawyers (WACDL) Member: National College for DUI Defense Member: State Bar of Wisconsin, Dane County Bar Association Admitted to practice: State of Wisconsin, Federal - Eastern District of Wisconsin, Western District of Wisconsin, 7th Circuit Court of Appeals Certified to administer roadside Field Sobriety Tests in Wisconsin On FaceBook - Drunk Driving Lawyer    Financing Available

• Kinds of charges Kenyon has handled include:
  Homicide First Degree Intentional Homicide (Murder) Reckless Homicide Homicide by Negligent Use of a Dangerous Weapon Homicide by Negligent Use of an Automobile Homicide by Drunk Driving Attempts Other injury to persons Aggravated Battery Substantial Battery Battery - Domestic Violence Armed Battery Battery to a Peace Officer Battery Felony Battery Reckless Endangerment Injury by drunk driving False Imprisonment Felony Child Abuse Theft and misappropriation Theft Forgery Embezzlement Retail Theft Shoplifting Auto Theft Theft of Firearm Theft by Contractor Theft by Fraud Theft of Cable Services Securities Fraud Extortion Peace and Order Disorderly Conduct Disorderly Conduct - Domestic Abuse Domestic Violence - Domestic Abuse Restraining Orders Strangulation or Suffocation Lewd and Lascivious Behavior Harassment Improperly Taking the King's Deer (Hunting out of season or shining) Other DNR Violations Carrying a Concealed Weapon Carrying a Weapon in a School Hit and Run Fleeing or Eluding an Officer Disarming a Peace Officer Resisting an Officer Obstructing an Officer Drunk Driving Reckless Driving Recklessly Endangering Safety Speeding Voter Fraud - Illegal Voting	Drunk Driving - OWI / DUI / DWI / BAC / PAC Injury by Drunk Driving Felony Drunk Driving Drunk Driving - OWI - DUI - BAC - PAC - DWI Driving with a Prohibited Alcohol Content (PAC / BAC) Driving Under the Influence of an Intoxicant (DUI) Driving under the Influence of a Controlled Substance (Drugged Driving) Driving with Prescription Medications in Wisconsin Operating Under the Influence - OWI Impaired Driving Absolute Sobriety CDL - Commercial Drivers License SEE TEN DAYS TO KEEP YOUR LICENSE! Sexual Assault First Degree Sexual Assault Second Degree Sexual Assault Third Degree Sexual Assault Fourth Degree Sexual Assault Sexual Assault to a Child Sexual Assault by a Child Incest Date Rape Sexual Predator (980) Commitments Child Pornography Continuing Sexual Assault of a Child Robbery Robbery Armed Robbery Car Jacking Burglary and Trespass Armed Burglary Burglary Trespass to a Dwelling Damage to Property Arson Criminal Damage to Property Drugs Manufacture of Controlled Substances Manufacture of Marijuana (THC) Delivery of Controlled Substances Delivery of Marijuana (THC) Possession with Intent to Deliver Controlled Substances Possession with Intent to Deliver Marijuana (THC) Possession of Controlled Substances Possession of Marijuana (THC) Felony Possession of Marijuana (THC) Unlawful Possession of Prescription Drugs Possession of Drug Paraphernalia Obtaining a Controlled Substance by Fraud Prescription Forgery Park and School Enhancers Informants and Undercover Officers
  This list is not complete but is given to give the reader some idea of the scope of my criminal law experience. I have represented juveniles as well as adults on most of these charges. CKK

   

   

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