The case: Scot Van Oudenhoven v Wisconsin Department of Justice
Case no.: 2023AP70-FT
"In brief" posts are shorter looks at various court decisions and 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.
People convicted of domestic violence-related crimes can be denied permission to buy handguns, even after the record for the crime has been expunged, the state Court of Appeals ruled Tuesday.
Expungement does not remove the conviction, but merely removes evidence of it from court records," Appellate Judge Gregory Gill Jr. wrote for the three-judge District III panel. He was joined in the decision by Appellate Judges Lisa Stark and Thomas Hruz.
Appellant Scot Van Oudenhoven argued that "the DOJ erroneously interpreted the applicable laws. First, Van Oudenhoven asserts that the DOJ did not have the authority to deny his handgun purchase under" federal law, Gill wrote. "Second, Van Oudenhoven asserts that even if the DOJ had such authority, that statute did not apply to his misdemeanor conviction because the conviction was expunged."
The relevant underlying facts are not in dispute. Van Oudenhoven was convicted in Calumet County ... of misdemeanor battery as an act of domestic violence against a woman with whom he shares a child. In 2019, the Calumet County Circuit Court granted Van Oudenhoven’s petition for expungement of the conviction. The order stated that the clerk of court “is ordered to expunge the court’s record of the conviction.”
Van Oudenhoven tried to buy a gun in 2022, but the state DOJ denied the purchase based on the battery conviction, a decision ultimately upheld by Winnebago County Circuit Judge Teresa Basiliere.
DOJ is authorized by federal law to deny a Wisconsin-based firearm purchase due to a prospective buyer’s conviction for a misdemeanor crime of domestic violence. As we will explain, the DOJ has been delegated by the federal government as the federal law liaison for firearm purchases in Wisconsin. Here, the DOJ denied Van Oudenhoven’s purchase pursuant to federal law, not state law.
***
Federal law requires the state to determine the legality of a handgun purchase under both state and federal law, Gill wrote.
Here, as Van Oudenhoven implicitly concedes, his firearm purchase would have violated federal statute, which states that an individual “who has been convicted in any court of a misdemeanor crime of domestic violence” cannot possess or receive any firearm. ...
Federal law also says that "a person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] if the conviction has been expunged or set aside..."Gill wrote.
***
Courts interpreting federal law have consistently construed “expunged” and “set aside” synonymously so as to require the “state procedure to completely remove all effects of the conviction at issue” as a prerequisite to an individual being permitted to possess or receive a firearm. ...
Wisconsin's expungement law does not do that, Gill said.
Van Oudenhoven’s conviction was not completely removed of all effects and remains valid for purposes of denying him permission to purchase a firearm in Wisconsin under federal law.
We therefore affirm the circuit court’s decision upholding the DOJ’s decision to deny Van Oudenhoven’s purchase.
Comments