2009 WI APP 74

Joseph E. Koll, Jr.,

�� Petitioner-Respondent,�

�� v.

Department of Justice of the State of Wisconsin,

�� Respondent-Appellant.

Opinion Filed:	April 1, 2009
Submitted on Briefs:�	December 11, 2008
Oral Argument:�

JUDGES:	Brown, C.J., Anderson, P.J., and Snyder, J.
�� Concurred:	Anderson, P.J.
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the respondent-appellant, the cause was submitted on the briefs of Robert M. Hunter, assistant attorney general, and J.B. Van Hollen, attorney general.�

Respondent
ATTORNEYS:	On behalf of the petitioner-respondent, the cause was submitted on the brief of Alexander L. Ullenberg of Ullenberg Law Offices, Fond du Lac.�

COURT OF APPEALS

DECISION

DATED AND FILED

April 1, 2009

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2008AP2027	Cir. Ct. No.� 2008CV24
STATE OF WISCONSIN��			IN COURT OF APPEALS



Joseph E. Koll, Jr., �� Petitioner-Respondent, �� v. Department of Justice of the State of Wisconsin, �� Respondent-Appellant.

�� APPEAL from orders of the circuit court for Green Lake County:� william m. mcMONIGAL, Judge.� Reversed.�

�� Before Brown, C.J., Anderson, P.J., and Snyder, J.

�1�� SNYDER, J.�� The Department of Justice appeals from an order requiring the DOJ to issue a handgun permit to Joseph E. Koll, Jr.� The DOJ contends that the circuit court erred when it reversed a DOJ decision to deny Koll�s permit request based on a conviction for disorderly conduct in 1998.� At issue is whether Koll was convicted of a misdemeanor crime of domestic violence, as defined 18 U.S.C. �921(a)(33)(A)(2006),[1] which would preclude Koll from obtaining a handgun.� Our review of the record reveals that Koll was convicted of �non-domestic� disorderly conduct; however the charging documents describe a domestic relationship between Koll and the victim.� That is sufficient, under United States v. Hayes, 555 U.S. ___, 129 S. Ct. 1079 (2009), to serve as a predicate offense barring Koll from possessing a gun.� The DOJ also appeals from an order awarding costs and fees to Koll.� Because we reverse the circuit court�s order to issue the gun permit, costs and fees are not available to Koll.� Accordingly, we reverse both orders of the circuit court.

BACKGROUND

�2�� The State charged Koll with violent disorderly conduct and battery arising from an incident that occurred on June 11, 1998.[2]� The probable cause statement supporting the complaint indicated that Koll had slapped the hand and twisted the arm of his live-in girlfriend, and that when she tried to leave, Koll broke the side mirror off of the vehicle.� During the course of the investigation, the police officer on the scene had the victim complete a domestic abuse packet.� Ultimately, Koll pled no contest to two counts of disorderly conduct, specifically described as �non-domestic,� and was convicted under Wis. Stat. � 947.01 (1997-98).[3]� The circuit court imposed and stayed a sentence of ninety days in jail on each count, to be served consecutively.� The court then placed Koll on probation for three years and ordered him to participate in �Domestic Abuse Perpetrator�s� counseling.

�3�� On December 10, 2007, Koll attempted to purchase a handgun at a local retailer.� The DOJ denied his request.� Koll then submitted his fingerprints for verification, but was again denied.� On December 28, Koll requested a review of the decision before the administrator of the Division of Law Enforcement Services.� On January 9, 2008, the administrator summarily denied Koll�s request, citing the 1998 conviction as running counter to the Gun Control Act, 18 U.S.C.
� 921(a)(33).� Applying the federal law, the administrator concluded that Koll�s convictions involved �misdemeanor crime[s] of domestic violence.�

�4�� Koll sought review of the agency decision in circuit court.� The court conducted a hearing on June 16, 2008.� At that hearing, the DOJ argued that it had merely applied the federal law and had �no discretion in [the] matter� once it looked at the �underlying complaint� and determined the case involved a domestic relationship.� In other words, because the complaint alleged that Koll did �unlawfully cause domestic abuse to another,� and because the disposition required Koll to attend domestic abuse counseling, the DOJ denied the handgun permit under the Gun Control Act.

�5�� The circuit court was not persuaded and held in favor of Koll.� It relied on the �non-domestic� characterization of the offense for which Koll was convicted.� The court ruled that the department wrongfully withheld the gun permit and ordered the permit to issue.� The DOJ appeals.

DISCUSSION

�6�� We begin by noting that we review the agency decision, not the decision of the circuit court. �Beecher v. LIRC, 2004 WI 88, �22, 273 Wis. 2d 136, 682 N.W.2d 29.� Generally, an agency action may be set aside or remanded only if it is unsupported by substantial evidence in the record.� R.W. Docks & Slips v. DNR, 145 Wis. 2d 854, 860, 429 N.W.2d 86 (Ct. App. 1988).� However, �where there is no hearing, and thus no �record� as that term is commonly understood, the question on review is not whether the agency can produce �substantial evidence� to support its decision, but rather whether the facts compel a particular result as a matter of law.� Id. at 860-61; see also Wis. Stat. � 227.57(7).� Accordingly, we must determine whether Koll�s conviction for disorderly conduct prohibits him, under 18 U.S.C. � 921(a)(33)(A), from exercising his constitutional right to bear arms.�

�7�� Since its inception in 1968, the Gun Control Act has barred felons from possessing firearms.� In 1996, Congress extended the prohibition on gun possession to persons convicted of a misdemeanor crime of domestic violence.� See 18 U.S.C. � 922(g)(9).� Although Koll�s predicate offense was labeled �non-domestic,� the criminal complaint indicates that Koll�s conduct was directed against the woman with whom he lived.� He does not dispute cohabiting with the victim; however, Koll asserts that the Gun Control Act targets convictions for misdemeanor crimes that include, as an element, a domestic relationship.� Because the State was not required to prove a domestic relationship to obtain a conviction for disorderly conduct, Koll argues, the gun possession ban does not apply to him.

�8�� In the Gun Control Act, Congress defined a misdemeanor crime of domestic violence to mean an offense that:

(i)� is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. � 921(a)(33)(A)(footnote omitted).� In Hayes, the question before the court was: �[T]o trigger the [gun] possession ban, must the predicate misdemeanor identify as an element of the crime a domestic relationship between aggressor and victim?�� 129 S. Ct. at 1082.[4]�

�9�� The U.S. Supreme Court reasoned that construing the Gun Control Act �to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress� manifest purpose� in extending gun control laws to abusers who are not charged with felonies.� Id. at 1087.� The Court observed that in 1996, only about one-third of all states had criminal statutes specifically describing crimes of domestic violence.� Id.� Domestic abusers were routinely prosecuted under general assault or battery laws.� Id.� The Court concluded that �[g]iven the paucity of state and federal statutes targeting domestic violence, we find it highly improbable that Congress meant to extend � [its] firearm possession ban only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense.�� Id. at 1087-88.� Ultimately, the Court held:

The text, context, purpose, and what little there is of drafting history all point in the same direction:� Congress defined �misdemeanor crime of domestic violence� to include an offense �committed by� a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime.�

Id. at 1089.

�10�� We conclude that the DOJ properly denied Koll�s application for a gun permit.� The 1998 conviction for disorderly conduct arose from an event involving Koll and his live-in girlfriend.� This falls within the definition provided in 18 U.S.C. � 921(a)(33)(A)(ii), which provides that a domestic relationship exists where the aggressor and the victim are cohabiting or have cohabited.� Koll, therefore, has committed a predicate misdemeanor crime of domestic violence as that term is used in the Gun Control Act, and he may not possess a firearm.� The DOJ properly denied his request for a gun permit.

�11�� The DOJ also appeals from the circuit court�s order for costs and fees under Wis. Stat. �� 814.245(3) and 227.485.� Because we reverse the underlying order, we also reverse the award of costs and fees.

CONCLUSION

�12�� The question before us is whether Koll�s conviction for disorderly conduct prohibits him, under the Gun Control Act, from exercising his Second Amendment right to bear arms.� The U.S. Supreme Court has unambiguously spoken, and the facts can lead to but one conclusion.� Because Koll had a domestic relationship with the victim of his misdemeanor crime of disorderly conduct, he may not possess a gun.� We reverse the orders of the circuit court.

�� By the Court.�Orders reversed.

��

No.�	2008AP2027(C)

�13�� ANDERSON, P.J. (concurring).�� I write separately for three reasons.� First, to point out the obvious, there is no crime entitled �disorderly conduct (non-domestic)�; second, to summarize the compelling reasons why perpetrators of domestic violence are denied access to guns; finally, to show that the Bureau of Alcohol, Tobacco, Firearms and Explosives considers the contents of the complaint and not the title or elements of the charge.

�14�� Koll was originally charged with two counts, disorderly conduct, in violation of Wis. Stat. � 947.01, and battery, within seventy-two hours of an arrest for domestic abuse, in violation of Wis. Stat. �� 940.19(1) and 939.621.� As part of a plea agreement, both counts were amended to �disorderly conduct (non-domestic in nature),� and the judgment of conviction reflected Koll�s conviction of two counts of �disorderly conduct (non-domestic).�� I have reviewed the criminal code and have not found such a crime.� The judgment of conviction reflects that the two counts violated � 947.01, which does not differentiate between nondomestic and domestic disorderly conduct:

Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

�15�� Circuit courts are not empowered to label crimes in an attempt to help a party avoid collateral consequences.� It is for the legislature to decide if different types of disorderly conduct should be treated differently.� When we considered the statutory scheme involving battery committed by juveniles while in a secure facility we wrote, �[T]he legislature is entitled to recognize different degrees and types of harm and to strike at what it believes �more urgently needs repression.��[5]� State v. Martin, 191 Wis. 2d 646, 658, 530 N.W.2d 420 (Ct. App. 1995).� It is elementary that �it is the function of the legislature to prescribe the penalty and the manner of its enforcement; the function of the courts to impose the penalty �.� �State v. Borrell, 167 Wis. 2d 749, 767, 482 N.W.2d 883 (1992).

�16�� When Congress amended the 1968 Gun Control Act to prohibit anyone convicted of a �misdemeanor crime of domestic violence� from possessing a firearm, 18 U.S.C. � 922(g)(9), it did so for a compelling reason:� the protection of victims of domestic violence. �The sponsor of the amendment, Senator Frank Lautenberg, noted, �There is no question that the presence of a gun dramatically increases the likelihood that domestic violence will escalate into murder. �According to one study, for example, in households with a history of battering, the presence of a gun increases the likelihood that a woman will be killed threefold.�� 142 Cong. Rec. S11227 (Daily ed. Sept. 25, 1996).

�17�� In rejecting an equal protection challenge to 18 U.S.C. � 922(g)(9), the 7th Circuit commented, �The rationale for keeping guns out of the hands of those convicted of domestic violence crimes is eminently reasonable.�� United States v. Lewitzke, 176 F.3d 1022, 1026 (7th Cir. 1999).

�18�� The pervasive problem of domestic violence should be well known to every circuit judge who has a criminal calendar.� �Intimate partner homicides account for between one-third to one-half of all female homicides.� Every year in the United States, between 1000 and 1600 women die at the hands of their male partners, often after a long and escalating pattern of battering.�� Brief for Brady Center to Prevent Gun Violence, et al. as Amici Curiae Supporting Petitioners, 10 (footnotes omitted), United States v. Hayes, 555 U.S. ___, 129 S. Ct. 1079 (2009). ��Studies demonstrate that the involvement of a gun during an incident of domestic violence significantly increases the probability�making it twelve times more likely�that the encounter will result in a homicide.�� Brief for National Network to End Domestic Violence, et al. as Amici Curiae Supporting Petitioners, 5, United States v. Hayes, 555 U.S. ___, 129 S. Ct. 1079 (2009).� Even if the victim is not killed, he or she is frequently injured if a gun is involved.� Id.

�19�� Wisconsin is not immune from this violence.� In 2006, there
were 25,531 incidents of domestic violence in the state.�
Wisconsin Department of Justice Office of Crime Victim
Services, 2006 Domestic Abuse Incident Report (DAIR), 3 (2007) (http://www.doj.state.wi.us/cvs/documents/DAR/2006DAR/2006DAR.pdf, last visited Mar. 11, 2009). ��There were 40 domestic homicides in 19 counties in Wisconsin in 2006. �The youngest victim was under one year old; the oldest was 85. �Victims were most often females killed in their residence by a family member using a firearm or a knife.�� Id. at 4.

�20�� Preventing convicted domestic violence abusers from arming themselves also protects law enforcement.� FBI statistics show that thirty percent of officers assaulted or injured when responding to a call for help were responding to a domestic violence call.� Brief for Brady Center to Prevent Gun Violence, et al. as Amici Curiae Supporting Petitioners, 18, United States v. Hayes, 555 U.S. ___, 129 S. Ct. 1079 (2009).� �A substantial number of police officer deaths result when officers respond to domestic violence incidents.� Eighty-one law enforcement officers were killed when responding to domestic disturbance calls from 1996 to 2005 �.�� Id. at 15-16 (footnotes omitted).

�21�� In closing, I note that the Bureau of Alcohol, Tobacco, Firearms and Explosives takes the position that it is the contents of the complaint that determines whether the conduct is a misdemeanor domestic violence crime.� See Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Misdemeanor Crime Of Domestic Violence Questions And Answers (as of April 28, 1997) (�X was convicted of misdemeanor assault on October 10, 1996.� The crime of assault does not make specific mention of domestic violence but the criminal complaint reflects that he assaulted his wife.� May X still possess firearms or ammunition?� No.� X may no longer possess firearms or ammunition.�)� (http://www.atf.gov/firearms/domestic/qa.htm, last visited Mar. 11, 2009).� Therefore, the DOJ properly went behind the judgment of conviction and based its decision to deny Koll a permit on the contents of the complaint and police report.

[1] All references to the United States Code are to the 2006 version unless otherwise stated.

[2] Record documents show that a second incident, involving the same complainant, occurred on July 2, 1998; however, the criminal complaint and the judgment of conviction relate only to the events of June 11.

[3] Koll was convicted under the 1997-98 version of the Wisconsin Statutes.� All subsequent references to the Wisconsin Statutes are to the 2007-08 version.

[4] The U.S. Supreme Court acknowledged a split in the federal circuits on the question.� The majority of circuits aligned with United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999), which held that a predicate offense of misdemeanor domestic violence requires only �the use or attempted use of physical force� and does not require a domestic relationship as an element.� In contrast, the court in United States v. Hayes, 482 F.3d 749, 752 (4th Cir. 2007) interpreted the definition of a misdemeanor crime of domestic violence to include two elements, one of force and one of the specified domestic relationship.

[5] The United State Supreme Court has observed:

[I]t is within the power of a legislature to prescribe a rule of general application based upon a state of things which is ordinarily evidence of the ultimate fact sought to be established.� �It was obviously the province of the state legislature to provide the nature and extent of the legal presumption to be deduced from a given state of facts, and the creation by law of such presumptions is, after all, but an illustration of the power to classify.��

Hawker v. New York, 170 U.S. 189, 197-198 (1898) (citation omitted).

Case No.:	2008AP2027
Complete Title of Case:		� Petition for Review Filed