The SCOW docket: State v. Roundtree

Walsh Bradley

Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue.
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Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages)

​The upshot

The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him.

Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm....
 
We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny.
 
Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence.....

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The Background

In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm.

Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen." 

​The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision. 

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The guts​

Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues        that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications....

The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited."  The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 

In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive ​places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. 

Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property."

But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense.

Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence."  The legislature did not... create a hierarchy of felonies, and neither will this court. 

Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here. 

Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence."

Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is.

Grassl Bradley

Dissent: Rebecca Grassl Bradley (31 pages)
Ignoring conclusive historical evidence to the contrary, the majority upholds the constitutionality of Wisconsin's categorical ban on the possession of firearms by any person convicted of a felony offense,1 regardless of whether that individual is dangerous. Under the majority's vision of what is good for society, "even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to . . . break the law."  It may be "reasonable" to the majority but it surely isn't constitutional. "The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all."  Centuries of history warned the Founders that governments certainly wanted to keep arms out of the hands of the citizenry in order to ease the establishment of tyranny – and they often succeeded. It is for this very reason that the Framers insisted on preserving the individual right to keep and bear arms for all Americans....

While legislatures have always had the power to prohibit people who are dangerous from possessing firearms, the Second Amendment does not countenance collectively depriving all felons of their individual Second Amendment rights. Such laws sweep too broadly, disarming those who pose no danger to society. And if the professed purpose of felon dispossession laws is "public safety and the prevention of gun violence" as the majority describes, then Wisconsin's lawmakers need to adjust their aim; Wis. Stat. § 941.29(1m) leaves violent misdemeanants free to keep and bear arms.

Even assuming Wisconsin's felon dispossession statute serves the unquestionably compelling state interest in public safety,  the statute is not "narrowly tailored" toward advancing that interest because it applies to any individual convicted of a felony offense, even if that person poses no danger to society. For example: "One man beats his wife, harming her physically and emotionally and traumatizing their children who witness the assault. He may, however, only have committed battery, a misdemeanor." The legislature allows this undisputedly violent man to possess a firearm. "Another man enters a garage to steal a shovel; he has committed a burglary," which is a felony offense. The legislature forever prohibits him from possessing a firearm. "One woman drives while intoxicated, threatening the lives of countless citizens. Under Wisconsin's drunk driving laws – the weakest in the nation – she has committed a non-criminal offense if it is her first, or only a misdemeanor unless it is her fifth (or subsequent) offense."  Wisconsin's legislature deems this woman fit to possess a firearm. "Another woman, however, forges a check; she has committed a felony."  As a result, Wisconsin's legislature forever prohibits her from possessing a firearm. Despite the utterly ineffectual distinctions drawn by the legislature, the majority allows the legislature to permanently dispossess non-dangerous individuals of their Second Amendment rights while allowing violent citizens to retain them. Even intermediate scrutiny cannot save a statute that purports to serve an important government interest——protecting society from violent criminals——but fails so miserably to achieve it.

(The majority makes) a selective but incomplete citation to Heller, proclaiming that "the Second Amendment secures 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'"  Of course, far from restricting the right to keep and bear arms to a select segment of society, to be exercised only for self-defense in the home, Heller instead declared that the Second Amendment right "belongs to all Americans" and broadly protects all "defensive purposes" regardless of whether the right is exercised within or beyond the home. This is the core right protected by the Second Amendment. The full context of the phrase from Heller cited by the majority shows that the Second Amendment is neither limited to "law-abiding" citizens nor confined to the "defense of hearth and home." Instead, the Heller Court reserved other applications of the Second Amendment for "future evaluation" while declaring that the Constitution "surely elevates above all other interests" the practice prohibited by the District of Columbia's handgun ban: "the right of law-abiding citizens to use arms in defense of hearth and home." While this may constitute a particularly sacrosanct exercise of the Second Amendment right, at its core, the Second Amendment protects far more, and nothing in an original understanding of its text remotely suggests a non-violent criminal forfeits his Second Amendment right altogether....

Wisconsin's citizens should be alarmed by the breathtaking scope of the majority's conclusion that "it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to . . . break the law" considering the "cancerous growth since the 1920s of 'regulatory' crimes punishable by more than a year in prison, as distinct from traditional common-law crimes. The effect of this growth has been to expand the number and types of crimes that trigger 'felon' disabilities to rope in persons whose convictions do not establish any threat that they will physically harm anyone, much less with a gun." As but one example of how the ever-expanding regulatory state may eventually make felons of us all, recall that whomever fails "to comply with any record-keeping requirement for fish" is guilty of a Class I felony under Wis. Stat. § 29.971(1)(c) (provided the fish are worth more than $1,000). 

Even if Roundtree had spent time in prison, the premise that the State may permanently disarm all felons in order to protect the public, based on data showing that 21.4 percent of felons incarcerated for "public order offenses" later commit violent ones, presents a specious justification for infringing a fundamental constitutional right. Unlike Roundtree who was sentenced to probation, Martha Stewart spent five months in jail. "Is the public safer now that Martha Stewart is completely and permanently disarmed?" Of course not, and "it is at least curious how Martha Stewart could merit anyone's concern." The same could be said for Roundtree, since the State produced no evidence indicating that Roundtree presents a danger to society warranting removal of his Second Amendment right. 

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Hagedorn

​Dissent: Brian Hagedorn (34 pages)

This complete ban on possessing firearms never expires; it lasts for a lifetime. It matters not whether the felony was for making unlawful political contributions, legislative logrolling, armed robbery, or here, delinquent child support....
 
The majority...reason(s) that the State may disarm all those who have committed a felony of whatever kind. I disagree. I conclude that the original public meaning of the Second Amendment supports applying at least intermediate scrutiny to this type of restriction. This places the burden on the State to demonstrate that the law is constitutional as applied to Roundtree by proving a substantial relationship, a close fit, between criminalizing gun possession for those convicted of any felony or of the felony of failure to pay child support and the State's interest in preventing gun-related violence. The State has come nowhere close to meeting its burden. I respectfully dissent....
 
Where the government purports to act in ways the people have made clear in their constitution are outside the power granted, it is not the citizen who must show the government has acted unconstitutionally; it is the government that must demonstrate it has authority to do what it wishes. The Constitution reflects a presumption that government action in that zone is unlawful unless proven otherwise. The historic right to keep and bear arms is an individual and fundamental right. But the government has broader authority to restrict the right of those who would use arms for gun-related violence. Intermediate scrutiny – requiring a substantial connection to the important governmental interest – appears to best capture and secure the right in accordance with its original public meaning where government acts to protect against those who pose a danger of engaging in gun-related violence....

It is indisputable that public safety is a compelling governmental interest. This interest is also well-illustrated in the history of the Second Amendment. Wisconsin Stat. § 941.29(1m)(a) therefore advances an important government objective. 

​Thus, we turn to the second prong of the intermediate scrutiny analysis: whether a law that dispossesses all felons is substantially related to the government's interest in preventing gun-related violence. And again, it's worth repeating that the State bears the burden to show a close and substantial connection exists....

The State's correlation-centric reasoning – that Wis. Stat. § 941.29(1m)(a) substantially furthers the fight against gun-related violence simply by virtue of a correlation between past crime of any sort and future violent crime – does not meet the mark. Playing this logic out further, suppose those who previously declared bankruptcy are modestly more likely to commit violent crime in the future? Or those who do not have a bachelor's degree by the time they are 25?  How about those who were born out of wedlock, or who fall below the poverty line? Taking the State's argument on its face, dispossession laws barring these classes of persons (which impact not a small amount of the population) would survive as long as the State could prove that these features are correlated with an increased risk of committing violent crime with a firearm. Modest correlation, however, is simply not enough. And at best, that is all the State has here....

Including all felonies in Wis. Stat. § 941.29(1m)(a)'s reach, no matter how violent and no matter how serious, is "wildly overinclusive." It is an extraordinarily broad class that lacks a substantial relationship to the harm it seeks to remedy. The fit between means and ends must be close —not perfect, but close. The State's evidence is far from showing that dispossessing all felons forever bears a close or substantial relationship to remediating the danger of gun-related violence. If the class of all felons is too broad, perhaps the State could nonetheless show that criminalizing possession of firearms based on the particular underlying felony survives constitutional scrutiny. But the State does not even purport to argue that those who have failed to pay child support or committed other analogous crimes pose any risk of committing gun-related violence as a consequence of their underlying felony, nor do its studies support that conclusion. The State therefore fails to meet its burden of proof here as well.

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