Robert Evans, Jr. loses his appeal: He was an "and" when he should have been a "or ".
As of October 2013, 200,000 concealed carry permits were issued in Wisconsin, and 5,800 applications were denied. One denied applicant, Robert Evans, Jr., appealed. The Wisconsin Court of Appeals has now ruled that he will not be getting his concealed carry permit, thanks to his 2002 conviction for Disorderly Conduct, contrary to Wis. Stat. 947.01. Read the full opinion here. Evans can still petition for reivew of the decision, but as the saying goes, "If you want to win an appeal, be the appellee." This is especially true after losing at the first level.
The Court of Appeals determined that Mr. Evans' conviction for Disorderly Conduct fell within the gun ban of the Federal Firearms Act as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A). The court looked at the conviction and determined that it involved "use of physical force" because, examining the "limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions", the first "element" of his conviction involved “violent, abusive and otherwise disorderly conduct.” According to the court, the fact that Evan was convicted of "violent abusive and otherwise disorderly conduct" made it "a relatively easy case."
Importantly, the court kept the door open for those cases where the first element was stated "in the disjunctive", meaning it was stated as "violent, abusive, or otherwise disorderly conduct." In my experience, the elements in La Crosse County and surrounding counties have almost always been stated that way. There is still hope.
Another issues in Evan's appeal was whether his step-daughter, the "victim" of his offense. The statue covers "a
current or former spouse, parent, or guardian of the victim, … a person with whom the victim shares a child in common, … a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or … a person similarly situated to a spouse, parent, or guardian of the victim." The issue was whether Evans was “similarly situated” to a parent. The court, construing the statute broadly, determined that he was. It also made clear it would not look at the intricacies of the relationship to determine whether the step-parent was an parental figure.
If you want to possess a firearm again, let alone have a concealed carry permit, the most important thing is to simply avoid a conviction for Disorderly Conduct. Many are lured into a plea thinking it will be a fine only. There are often long-term consequences. If you are never convicted, you don't have to spend years of time and energy parsing words with your lawyer trying to get your rights back. However, as this opinion suggests, if you are convicted of DC, then parsing words may be exactly what you want to do. The way the first element is/was framed may affect whether you fall within the dreaded gun ban.
The Court of Appeals determined that Mr. Evans' conviction for Disorderly Conduct fell within the gun ban of the Federal Firearms Act as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A). The court looked at the conviction and determined that it involved "use of physical force" because, examining the "limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions", the first "element" of his conviction involved “violent, abusive and otherwise disorderly conduct.” According to the court, the fact that Evan was convicted of "violent abusive and otherwise disorderly conduct" made it "a relatively easy case."
Importantly, the court kept the door open for those cases where the first element was stated "in the disjunctive", meaning it was stated as "violent, abusive, or otherwise disorderly conduct." In my experience, the elements in La Crosse County and surrounding counties have almost always been stated that way. There is still hope.
Another issues in Evan's appeal was whether his step-daughter, the "victim" of his offense. The statue covers "a
current or former spouse, parent, or guardian of the victim, … a person with whom the victim shares a child in common, … a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or … a person similarly situated to a spouse, parent, or guardian of the victim." The issue was whether Evans was “similarly situated” to a parent. The court, construing the statute broadly, determined that he was. It also made clear it would not look at the intricacies of the relationship to determine whether the step-parent was an parental figure.
If you want to possess a firearm again, let alone have a concealed carry permit, the most important thing is to simply avoid a conviction for Disorderly Conduct. Many are lured into a plea thinking it will be a fine only. There are often long-term consequences. If you are never convicted, you don't have to spend years of time and energy parsing words with your lawyer trying to get your rights back. However, as this opinion suggests, if you are convicted of DC, then parsing words may be exactly what you want to do. The way the first element is/was framed may affect whether you fall within the dreaded gun ban.
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