Bill would bar those convicted of domestic violence from owning guns, closing loophole exposed in court case

MADISON — A proposal backed by Attorney General Josh Kaul and domestic abuse victim advocates would prevent Wisconsinites convicted of domestic violence from owning guns, closing a loophole exposed by a 2022 state Supreme Court ruling.

The legislation would adjust the state laws covering the crime of disorderly conduct and the definition of domestic abuse, making it so a person convicted of disorderly conduct as a result of domestic violence would be barred from possessing a firerarm.

It's a "simple, common-sense way to prevent crime and keep Wisconsinites safe," Kaul said.

Kaul said he has not spoken with any Republican lawmakers about the legislation, but said he would work with anyone willing to consider it.

The proposal follows a May 2022 decision from the state's high court, unanimously reversing a circuit judge's ruling that a man's conviction for disorderly conduct counted as a domestic violence misdemeanor under federal law that would then prohibit gun possession.

The court found that, while the offense was domestic and violent, it's not the facts that matter, but the nature of Wisconsin's disorderly conduct statute. That law allows conviction for a variety of actions, but since violence is not a required element, it doesn't match the federal definition of domestic violence and, therefore, does not disqualify a person from legally owning a gun or holding a license to carry a concealed weapon.

In a concurring opinion, Justice Jill Karofsky called the conclusion, while legally correct, "as nonsensical as it is dangerous," and urged the Legislature to close a loophole the court cannot.

The bill would reorganize the state's disorderly conduct statute to differentiate “violent” conduct from other types of disorderly conduct. It would also reorganize the statute defining domestic abuse so court records would note the nature of the relationship between those involved in an incident.

"We’re not asking the Legislature to expand restrictions that are in place, we’re asking for us to go back to where we were prior to that decision in 2022," Kaul said during a news conference.

Even under Wisconsin's liberal concealed carry law, someone who is prohibited by federal law from possessing a gun is not supposed to qualify for a permit.

The federal law in question, known as the Lautenberg Amendment, says anyone convicted of a "misdemeanor crime of domestic violence" can't possess firearms. Some gun rights advocates have challenged the reach of the law ever since.

Wisconsin's disorderly conduct law doesn't include a force or deadly weapon component. The U.S. Supreme Court has said that's what counts when analyzing whether the state conviction is a prohibiting conviction under the federal law, not the facts underlying the conviction.

"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," Justice Brian Hagedorn wrote in the 2022 majority opinion.

Writing for the court, Hagedorn said Wisconsin's law lists several ways someone can be disorderly. Those include physical force or threatened use of a weapon, but those are only among the options, and therefore not a required element of the crime.

"Nothing in the grammar or structure of the list separates the listed behaviors in a way that would suggest it codifies seven different crimes," he said. "The most straightforward understanding of (the statute) is that it provides a non-exhaustive list of means by which the single crime of disorderly conduct may be committed."

The 2022 decision specifically overruled a 2014 decision by the Court of Appeals that upheld the denial of a CCW permit over a disorderly conduct conviction related to domestic violence.

In the concurring opinion, Karofsky cited the "staggering" numbers around domestic violence and guns: a victim is five times more likely to be killed by her abuser if he has access to firearms, and an average of 70 women are fatally shot in the U.S. every month during domestic violence. Karofsky suggested three ways the Legislature could close the loophole, including making "domestic violence" a "stand-alone crime as many states have done."

The bill discussed Monday was proposed by Sen. Kelda Roys and Rep. Lisa Subeck, both Madison Democrats.

Wisconsin broke a record for domestic violence deaths again in 2022 with 96 lives lost, according to the annual statewide homicide report released last month by End Domestic Abuse Wisconsin. It was the highest total since the advocacy organization began releasing the data in 2000 and a 20% increase from last year's total of 80 people.

More: Gun deaths are rising in Wisconsin. Suicide and rural areas are a big part of the picture

Homicides occurred in 25 of Wisconsin's 72 counties with a nearly even split between rural and urban areas.

Victims' ages ranged from 20 months to 92 years, with an average age of 37. About 48% of the victims were white, while about 45% were Black. The report cited research showing women of color are over-represented compared to their share of the population, in part because of structural racial inequalities in housing, income and access to safety resources.

Firearms remain the most common weapon used in domestic violence homicides and made up a larger share of deaths than in past years. In 2022, guns were used in 88.5% of fatal domestic violence incidents compared with 67% of incidents in 2021.

Domestic violence assaults using a gun are 12 times more likely to result in death than those using other weapons or bodily force, the report noted.

"Every single individual who is a victim of domestic violence is a person whose life was cut short, taken away, because their abuser wanted to keep access to their guns. That person had hopes and dreams and struggles just like the rest of us. Their life matters," Roys said during Monday's news conference. "And that human being is one that leaves behind many other victims, their children, their family, their community. All of us are harmed when victims of domestic violence are not protected."

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This article originally appeared on Milwaukee Journal Sentinel: Bill would bar those convicted of domestic violence from owning guns