A disorderly conduct conviction can't disqualify someone from obtaining a permit to carry a concealed weapon in Wisconsin, the state Supreme Court ruled Friday in a unanimous decision that could dramatically broaden who can carry hidden firearms, knives and stun guns.
The court found that disorderly conduct isn't a misdemeanor crime of domestic violence under federal law and therefore doesn't disqualify a person from holding a concealed carry license.
Justice Jill Karofsky, a member of the court's liberal minority, concurred but in a separate opinion called on legislators to close a “dangerous loophole” that will allow domestic abusers to carry concealed weapons. Lawmakers introduced a bipartisan bill a year ago that would have reconciled the language but it never got got a hearing.
“Though legally correct, this result is as nonsensical as it is dangerous,” Karofsky wrote. “When a domestic abuse perpetrator, who has engaged in threats to kill or any other type of domestic violence, has access to a gun, the lethality risk for his victim increases significantly.”
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The case revolves around Daniel Doubek, of Green Bay. According to court documents, Doubek broke into his estranged wife's trailer in Door County in 1993 waving a board and shouting threats. He was ultimately convicted of disorderly conduct.
The state Justice Department granted Doubek a concealed carry permit in 2016, five years after carrying concealed weapons became legal in Wisconsin. The agency revoked his license in 2019 following an audit that revealed his disorderly conduct conviction.
Federal law prohibits states from issuing concealed carry permits to people convicted of misdemeanor domestic violence. The Justice Department found Wisconsin's disorderly conduct statute qualifies as misdemeanor domestic violence as defined under federal code.
Doubek sued to regain his permit, arguing that Wisconsin's disorderly conduct statute doesn't match the federal definition of misdemeanor domestic violence. The federal definition requires “the use or attempted use of physical force." But the state disorderly statute doesn't mention the use of force, defining disorderly conduct instead as violent, abusive, indecent, profane or other undefined conduct that causes a disturbance, he argued.
A judge in Green Bay upheld the license revocation, but Doubek appealed. The 2nd District Court of Appeals sent the case directly to the state Supreme Court without ruling on it.
Writing for the majority, Justice Brian Hagedorn said a disorderly conduct conviction in Wisconsin can't disqualify someone from holding a concealed carry license in the state.
“In short, the crime of disorderly conduct ... does not require the use or attempted use of physical force or the threatened use of a deadly weapon as an element, even if that conduct could serve as the basis for a disorderly conduct conviction,” Hagedorn wrote. “It is therefore not a misdemeanor crime of domestic violence under federal law.”
Democratic Attorney General Josh Kaul said the decision will allow more domestic violence perpetrators to possess guns.
“As Justice Karofsky's concurrence explains, this result is dangerous, especially for victims of domestic violence,” Kaul said in a statement. “The Legislature must act promptly to close this loophole and protect public safety.”
State Department of Justice spokeswoman Gillian Drummond didn't immediately respond to a follow-up message asking if the agency had any estimates of how many disorderly conduct convicts would now be eligible for a permit.
John Monroe, a Georgia-based lawyer who specializes in gun rights cases, represented Doubek. He said he was pleased with the decision. He acknowledged domestic abuse is a serious problem, but said if prosecutors don't want violent abusers to have concealed weapons they should charge them with violent offenses like battery.
Jeri Bonavia, executive director of the Wisconsin Anti-Violence Effort, which works to curb gun violence, called the decision “horrifying." Domestic abuse victims now find themselves even more at risk because of a legal technicality, she said.
“(The justices) are re-arming domestic abusers,” she said.
End Domestic Abuse Wisconsin Executive Director Monique Minkens pointed to a report her organization compiled in 2020 that found guns were used in 52% of domestic violence homicides and the ruling will only lead to more shootings.
“It is beyond a doubt that Wisconsin victims of domestic violence will be violently — and in many cases, lethally — impacted by the Wisconsin Supreme Court’s decision surrounding the expansion of concealed carry permits,” she said.
Neither group had any estimates of how many people with disorderly conduct convictions would now be eligible for permits. Jim Santelle, who worked as U.S. attorney in Milwaukee during the Obama administration and now serves as vice president of the Wisconsin Anti-Violence Effort's board, said the number is likely “significant."
“It certainly goes far beyond the case just involving Mr. Doubek here,” Santelle said.
A bipartisan group of legislators introduced a bill in May 2021 that would have included disorderly conduct as part of the definition of misdemeanor domestic violence in state law, mirroring the federal language and effectively preventing those convicted of disorderly conduct from obtaining concealed carry licenses.
The Republican chairmen of the Assembly and Senate criminal justice committees, Rep. John Spiros and Sen. Van Wanggaard, never held a hearing on the measure and it died when the two-year legislative session ended this past March. Aides for both legislators didn't immediately return messages Friday.
“If legislators don’t act, this kind of bad thing happens,” Santelle said. "Today is not a day to be proud of our government that cannot do those things to keep us safe.”