Supreme Court justice criticizes ‘nonsensical’ law allowing abusers to get gun permits

In a unanimous ruling, the Wisconsin Supreme Court ruled that a man who was convicted of misdemeanor disorderly conduct for breaking into his estranged wife’s home and threatening her while waving a two-by-four is eligible to receive a permit to carry a concealed weapon. 

The court found that the man “did not commit a crime of domestic violence.” Under federal law, if a person has been convicted of a domestic violence related misdemeanor, they are ineligible to possess a firearm. 

Despite the unanimous ruling, Justice Jill Karofsky wrote a scathing concurrence in which she said that on technical legal grounds the ruling is correct but that the law is “as nonsensical as it is dangerous.” She cited  statistics showing victims of domestic violence are frequently murdered when their abusers own guns.  

In 1993, Daniel Doubek of Door County smashed the glass of the front door of his wife’s home to unlock the door. When he got inside, he raised a piece of lumber above his head and told her “she’s dead.” 

Doubek’s wife was home alone with the couple’s 4-year-old daughter. She called for help from the neighbors while she and her husband argued outside for about 30 minutes as he continued to threaten her. Eventually he left and ultimately pleaded guilty to misdemeanor disorderly conduct. 

In 2016, Doubek applied for and received a permit to carry a concealed weapon. Three years later, the Wisconsin Department of Justice reversed its decision to grant the permit, citing his history of domestic violence. Doubek appealed to a circuit court, which agreed with the state. Friday’s Supreme Court decision is a reversal of the circuit court. 

Doubek’s attorneys argued that disorderly conduct is not a domestic violence related crime so he should be able to possess a gun. In his majority opinion, Justice Brian Hagedorn wrote that the court must base its decision “solely on whether the elements of the crime of conviction sufficiently match the elements” of the relevant federal statute, “while ignoring the particular facts of the case.” 

Karofsky wrote that ignoring the facts of the case is dangerous. 

“A domestic abuse victim is five times more likely to be killed by her abuser when the abuser has access to a gun,” she wrote. “Every month in this country an average of 70 women lose their lives to a domestic abuse perpetrator using a gun. Over half of all male-perpetrated femicides related to domestic abuse are the result of a firearm. What’s more, an abuser’s access to a gun increases the risk that a domestic homicide will claim the lives of multiple victims. And even where no homicide occurs, a gun provides an abuser additional means to coerce, threaten, or terrorize a domestic abuse victim.” 

While Karofsky agreed with the rest of the court that legally Doubek should be allowed to possess a weapon, she said that a legislative change should be made to close the loophole. 

“Recognizing this deadly combination, Congress enacted a firearm ban on domestic violence misdemeanants to address a ‘dangerous loophole’ in which domestic abusers avoided losing their access to guns because often prosecutors did not charge, much less convict, such abusers as felons — a status that generally would dispossess them,” she wrote. “Cases like this show the loophole is still open and dangerously so. Closing it, though, requires legislative — rather than judicial — action.” 

Karofsky suggests three potential actions for the state Legislature: adding a criminal statute of “threatened battery,” making “domestic abuse” a standalone crime or allowing courts to make the determination that the facts of a case constitute a crime of domestic violence. 

Rep. Lisa Subeck (D-Madison) said on Friday that the decision was a sign that the Legislature should pass a bill she co-authored with Sen. Dale Kooyenga (R-Brookfield) that would prohibit anyone with a domestic violence conviction, including disorderly conduct, from owning a firearm. 

“It is unacceptable that Republicans would allow yet another session to pass without taking action to protect victims of domestic violence,” Subeck said. “We must give law enforcement and the courts the tools they need to protect our families and communities from dangerous individuals with a history of violent behavior.”