The case: State v Bernabe Gonzalez
Case no.: 24AP358
Filed in: District I, Wisconsin Court of Appeals
Circuit Judge: Anderson Gansner, Milwaukee County
Filing Attorneys: Milwaukee County District Attorney Kyle Elderkin
"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. I'll try to post excerpts from the responses as they are filed. That can be months after filing of the the appellate brief.
The short "issues presented" statement right at the start of this appellate brief is a real grabber: "Whether an intoxicated driver has a constitutional right to possess a firearm under the Second Amendment."
Milwaukee County Circuit Judge Anderson Gansner said that such a right exists, given the U.S. Supreme Court's decision in New York State Rifle & Pistol Association v Bruen. The high court found unconstitutional New York state's requirement that a person show a special need for self-defense to qualify for a concealed-carry permit.
Gun restrictions do not violate the U.S. Constitution's Second Amendment only if there is a historical tradition of such limitations, the Supremes said.
In the Milwaukee County case, Bernabe Gonzalez was stopped by a Milwaukee County sheriff's deputy for running a red light. It looked like he might be drunk, so he was put through the standard field tests, on which he performed poorly. A preliminary blood test registered a blood alcohol content of .104, over the legal limit of .08.
A 9mm handgun was found in the driver's side door. Gonzalez did have a concealed carry permit.
He was charged with first-offense operating while intoxicated and misdemeanor possession of a firearm while intoxicated. First-offense OWI is not a crime in Wisconsin; it is a civil forfeiture violation.
He eventually pleaded guilty to the OWI charge, but sought dismissal of the firearm charge based on the Bruen decision. Gonzalez argued that Bruen invalidated Wisconsin’s guns-while-intoxicated prohibition.
The circuit court granted Mr. Gonzalez’s motion to dismiss on Sept. 6, 2023. In reaching its decision, the circuit court noted that the state had a burden to show 'distinctly similar' laws from the time of the founding. The circuit court found that the state failed to show 'any 18th century or older laws that were distinctly similar to Wis. Stat. § 941.20(1)(b), 'as called for by the Bruen decision.' ”
That law makes it a misdemeanor for a person to operate or go armed with a firearm the person is under the influence of an intoxicant.
The judge rejected the state's motion for reconsideration, prompting the appeal and Assistant District Attorney Kyle Elderkin's argument.
Wisconsin’s prohibition has been in effect since 1883. ...The original statute declared: “It shall be unlawful for any person in a state of intoxication, to go armed with any pistol or revolver.”
Over the course of the 140 years following the passage of Wisconsin’s prohibition, the law has been deemed to be valid and unreversed in the face of challenges. ...
Bruen changed the law, he said, but
The Bruen court insisted that this requirement compels the State to simply find a historical analogue in the modern law, and did not require a "historical twin." Indeed, Bruen only requires “relevant” similarity. ...
Wisconsin State Statute Section 941.20(1)(b) is valid under the newly revised Bruen analysis for three primary reasons. First, the Second Amendment’s right to possess a firearm applies to law-abiding citizens for self-defense. Gonzalez was not acting as a law-abiding citizen when this incident occurred because he was operating a motor vehicle while intoxicated. That conduct is expressly illegal in the state of Wisconsin. Second, Wisconsin’s law is analogous to laws already deemed presumptively lawful. Third, Wisconsin’s law is historically analogous to numerous other state laws from the founding and reconstruction eras of this nation’s history.
The U.S. Supreme Court, in District of Columbia v. Heller, said the Second Amendment rights applied only to “law-abiding, responsible citizens to use arms in defense of hearth and home.”
Bruen, a later decision, said Second Amendment rights applied outside the home as well, but did not negate the other conditions, Elderkin said.
Mr. Gonzalez fell short of meeting the definition of 'law-abiding' and 'responsible' at the time he possessed a firearm. ... Therefore, the Second Amendment protections cannot extend to Mr. Gonzalez in the same manner as would be extended and applied to protect the rights of law-abiding citizens.
Elderkin quoted from the Heller decision to set the next stage of his argument:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
He continued:
The state urges this Court to consider that many of the same arguments favoring firearms prohibitions for the mentally ill can be likened to the context of intoxicated individuals possessing firearms. ...
Whether intoxicated or mentally ill, the individual is presumed to be unable to rationally exercise his or her mental faculties, whether that be for a temporary period of time or in a more permanent circumstance.
Elderkin included a footnote: "The use of the term, 'mentally ill' is meant to refer to those subject to court-ordered restrictions related to their mental capacity."
In much the same way that the legislature desires to keep drunk individuals from driving cars, the legislature has also deemed it unsafe for drunk and mentally ill individuals to possess firearms. ...
The firearm prohibition for intoxication lasts only for the hours the person is intoxicated, so the prohibition is merely temporary in nature. It follows that intoxication is more akin to a 'waiting period' until the human body naturally processes and eliminates the intoxicating substance. An individual is not prohibited from owning a firearm forever; rather, he or she must simply wait until the intoxicated state wanes.
There is also a 'control' feature as well. Unlike mental illness, an intoxicated person exercises control. Essentially, an intoxicated person makes a conscious decision to waive his or her Second Amendment right when choosing to drink to the point of intoxication.
At the time of the country's founding, "Many states" had prohibitions on militiamen being drunk while armed, Elderkin said, and more states adopted prohibitions similar to Wisconsin's as they joined the union. Those laws
are evidence that legislative bodies have recognized that the overconsumption of alcohol affects the decision making, judgment, reaction time, and behavior of individuals. Possessing a dangerous weapon while at a level of intoxicated from alcohol has always created a potential risk and danger to the public. That centuries-old recognition is enough to establish a historical tradition, as required by Bruen.
This circuit court distinguished all of these laws. The circuit court found it weighty that many states had no such law restricting the possession of a firearm to intoxicated individuals, instead restricting the use and discharge of firearms. It then discredited statutes enacted within a century of the founding of this country by newly admitted states.
***
Bruen explicitly does not require a sister statute because the world in which we live, and the laws passed to govern that world, are entirely different than in the 1600’s and 1700’s. Per the website Constitutioncenter.org, at the time of ratification of the United States Constitution, the United States had approximately 3.9 million people living in it, and the largest city had a population of 40,000. The danger posed to the community by a single armed gunman is different today compared to 300+ years ago. This danger is amplified when the gunman is intoxicated. ...
If intoxicated persons are “dangerous” and should be prohibited from driving, the same basic logic can be applied to the prohibition of intoxicated persons in possession of firearms. ...
This court should reverse the circuit court’s decision and remand the matter for further proceedings.
Komentarze