Court of Appeals Upholds Loss of Gun Privileges:Language of Complaint makes no difference

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). Defense lawyers have for some time attempted to avoid this prohibition by negotiating with prosecutors to strike the domestic violence language from the criminal complaint and pleading their clients to “otherwise disorderly conduct.” In Koll v. The Dept. of Justice of the State of Wisconsin, 2008AP2027, the Court upheld the decision of the DOJ to deny Joseph Koll a handgun due to his plea to a charge of disorderly conduct that was amended so that it did not include domestic violence as an element but still involved a victim with whom he had lived in a domestic relationship. The Court wrote:

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.

Defendants accused of these types of offenses must have their matters thoroughly scrutinized. In a state like Wisconsin, where hunting is very popular and the right to bear arms is cherished, these charges must not be taken lightly. While domestic violence should not be tolerated and the congressional record reveals that the presence of a gun in a household increases the likelihood that a domestic incident will escalate to a homicide threefold, one’s constituional rights should not be abandoned in a cavalier fashion.

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