DOJ’s decision to deny application for firearm affirmed where applicant’s misdemeanor crime of domestic violence was expunged.

Van Oudenhoven v. Wis. Dept. of Justice, 2023AP70-FT, 6/4/24, District III (recommended for publication); case activity

Court of Appeals affirms circuit court’s order affirming DOJ’s decision to deny applicant’s request to purchase firearm after applicant’s conviction for a misdemeanor crime of domestic violence was expunged.

Scot Van Oudenhoven was convicted in a 1994 Calumet County case of misdemeanor battery as an act of domestic violence.  His conviction was expunged by the Calumet County Circuit Court in 2019.  In 2022, he attempted to purchase a handgun in Wisconsin.  The Wisconsin Department of Justice (DOJ) denied the purchase because Van Oudenhoven was prohibited from possessing or receiving a firearm under federal law as a result of his conviction for a misdemeanor crime of domestic violence (18 U.S.C. § 922(g)(9)).

On appeal, Van Oudenhoven argued that: 1) the DOJ was not authorized to deny his handgun purchase based upon federal law; and 2) even if the DOJ was authorized to deny the purchase, he was not prohibited from receiving or possessing a firearm under federal law because his conviction was expunged.  Van Oudenhoven cited 18 U.S.C. § 921(a)(33)(B)(ii), which states that a person is not prohibited from possessing or receiving a firearm if the person whose conviction for a misdemeanor crime of domestic violence was “expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

In a case recommended for publication, the Court of Appeals affirmed the circuit court’s order upholding the DOJ’s decision to deny Van Oudenhoven’s application to purchase a firearm.  The court held that the DOJ was authorized to determine whether a handgun purchase would violate state or federal law because the federal government delegates to state or local law enforcement agencies (referred to as the “Point of Contact”) to serve as the intermediary between a federally licensed firearms dealer and the National Instant Criminal Background Check System.  ¶ 16 (citing 28 C.F.R. § 25.2).  In turn, the DOJ is charged with notifying the firearms dealer whether the sale would violate state or federal law.  ¶ 18.  The court concluded that the plain language of 28 C.F.R. § 25.2 authorized the DOJ to deny Van Oudenhoven’s purchase if it would violate 18 U.S.C. § 922. ¶ 19. 

As for expungement, the court found that “expunged,” for purposes of § 922(a)(33)(B)(ii), requires the “’state procedure to completely remove all effects of the conviction at issue’ as a prerequisite to an individual being permitted to possess or receive a firearm.”  ¶ 27. (quoting Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10^th Cir. 2008)).  The court relied on the plain meaning of expunge as “to remove from a record, to erase or destroy;” and Congress’s definition of “expunge” for certain federal controlled substance offenses, which “completely removes the effects of a conviction,” to conclude that the state procedure in question must completely remove all effects of the conviction to meet the criteria for expungement under § 922(a)(33)(B)(ii).  ¶¶ 29-33.

The court found that Wisconsin’s expungement procedure “does not completely remove the effects of the conviction in question.  Therefore, an expunged conviction  does not constitute an ‘expunged or set aside’ conviction under 18 U.S.C. § 921(a)(33)(B)(ii).”  ¶ 38.  The court noted that Wis. Stat. § 973.015(1m) authorizes the sentencing court in certain situations to order that “the record be expunged.” ¶ 38.  Citing the Supreme Court’s decision in State v. Braunschweig,  which held that § 973.015 authorizes deleting evidence of the underlying conviction but does not invalidate the conviction, the court concluded that the expungement statute does not “completely remove the effects of a conviction.”  ¶ 39.

Van Oudenhoven did not challenge the DOJ’s decision on Second Amendment grounds.  The Supreme Court will decide this month in United States v. Rahimi whether 18 U.S.C. § 922(g)(8), which prohibits possessing firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment.  If the Court strikes down the firearm prohibition in such cases, whether Congress may prohibit people convicted of misdemeanor crimes of domestic violence from possessing a firearm will be in question.