Updated 5/27/09

False Bomb Scare, § 947.015 – Validity of Statute, Against Overbreadth Challenge
State v. Robert T., 2008 WI App 22
For Robert T.: Bradley J. Bloch
Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.
¶12      Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable, and consequently, Wis. Stat. § 947.015 must be read with the limitation that only a false bomb scare that constitutes a “true threat” can be charged.

¶15      Indeed, this is exactly what the supreme court of the state of Washington did with a similar statute prohibiting threats. In State v. Johnston, 127 P.3d 707, 708-09 (Wash. 2006), an intoxicated man, Tracey Johnston, made various threats following his arrest at the airport. He was charged with making threats to bomb or injure property, contrary to the Washington statutes. Id. at 709. At his jury trial, the trial court refused to give an instruction offered by Johnston defining a “true threat.” Id. In reversing the conviction, the supreme court explained:

            Here, the statute reaches a substantial amount of protected speech. For example, threats made in jest, or that constitute political statements or advocacy, would be proscribed unless the statute is limited to true threats. Accordingly, the statute must be limited to apply to only true threats.
Id. at 711-12.

¶16      Wisconsin Stat. § 947.015 must be read with the requirement that only “true threats” can be prosecuted. Here, the police who responded to Robert T.’s phone call believed the threat was real. Also, Robert T. apparently intended to frighten the listener; thus, his call appears to fall within the ambit of a “true threat.” Therefore, the statute is constitutional.

The court rejects Robert T.’s interpretation of Virginia v. Black, 538 U.S. 343 (2003) that a “true threat” is limited to threats to a specific person or group:  
¶19      In addition, we note that Wisconsin law has never limited a “true threat” to one which is directed at a person or group of persons and threatens bodily harm or death. Also, our research has been unable to find any cases which have adopted Robert T.’s interpretation of Virginia. Since Virginia was decided, numerous states have dealt with related statutes criminalizing bomb scare/threat and false alarms and numerous prosecutions have taken place for threatening to blow up property. See, e.g., Johnston, 127 P.3d 707; State v. Gibson, No. 2007-G-2755, slip op., 2007 WL 4150950 (Ohio Ct. App. Nov. 21, 2007); see also United States v. Brahm, ___ F. Supp.2d ___, 2007 WL 3111774, at *1 (D.N.J. Oct. 19, 2007) (charging a Wisconsin resident for posting information on a website that he knew to be false concerning acts that would cause damage to buildings or vehicles, and involving use of weapons of mass destruction and radiological dispersion devices). Certainly if the Supreme Court meant to severely limit the definition of “true threats” to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged. They have not been, and we are satisfied that Robert T.’s interpretation is wrong. Consequently, the trial court erred in so finding. Thus, the trial court’s order is reversed and remanded with directions that the trial court reinstate the delinquency petition.
Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession
State v. Joseph E. Koll, Jr., 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg
Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.
Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C. § 922(g)(33), and because the charging documents describe a “domestic” relationship between Koll and the victim the gun disqualification is established.
A disqualifying misdemeanor conviction has two separate components, 1) violence in 2) a “domestic” relationship. Koll indisputably lived with his DC victim; his argument was simply that the Gun Control Act requires “convictions for misdemeanor crimes that include, as an element, a domestic relationship,” ¶7. The court easily dispatched that argument: “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,” ¶12. In light of the referenced case, U.S. v. Hayes, 555 U.S. __, No. 07-608 (“Congress defined ‘misdemeanor crime of domestic violence’ to include an offense ‘committed by’ a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime”), this conclusion seems beyond challenge. Difficult questions—ignored by the court—remain, however.

Given that “domestic” relationship isn’t a formal element, how exactly is it to be established? (The definition is recited in ¶8 of the opinion and more or less comes down to spousal, parental, or guardianship “relationship between aggressor and victim.” You’ll find more in Hayes, and here, from the BATF website.) Koll did not, apparently, challenge the fact that he “cohabited” with the victim, so the matter of proving the connection didn’t have to be sharpened. The concurrence, though, elaborates a bit: “the DOJ properly went behind the judgment of conviction and based its decision to deny Koll a permit on the contents of the complaint and police report,”¶21. The concurrence cites only an ATF document for the proposition you can look at police reports to ascertain a domestic relationship, but that document doesn’t mention police reports at all. The majority, by contrast, indicates only that the domestic relationship was established by the complaint, e.g., ¶¶4, 7. Despite the concurrence, then, the opinion is not authority for going beyond the complaint. Indeed, a federal Armed Career Criminal Act case, Shepard v. United States, 544 U.S. 13 (2005), specifically holds that in determining the nature of qualifying priors, extrajudicial documents such as police reports are very much off-limits. The inquiry instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” (Not controlling, but arguably applicable to this context.) Thus, there’s a decent argument we’re limited to judicial documents in establishing a “domestic” relationship. But if Koll means nothing else, it means that labeling the complaint “non-domestic” does no good at all. It’s a nullity, as the concurrence accurately points out.

So much for the “domestic” relationship requirement. Recall the second requirement, “violence,” which Koll does not appear to have challenged. Perhaps he should have. The complaint, though, plainly “indicated that Koll had slapped the hand and twisted the arm of his live-in girlfriend, and that when she tried to leave, Koll broke the side mirror off of the vehicle”: why isn’t that conduct “violent”? Well, that isn’t necessarily the right question, which is, rather, whether the predicate offense necessarily involves violent conduct; whether, that is, and very much unlike the domestic relationship inquiry, force must be a formal element. Shepard (again: not controlling but arguably applicable) holds that the offense must be “categorically” violent. The same point is made more recently by Chambers v. U.S., No. 06-11206 (“This categorical approach requires courts to choose the right category. And sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect.”). DC, of course, is sort of an omnibus provision (“or otherwise disorderly conduct”), but only one elemental alternative unequivocally relates to “violent” conduct. The Koll opinion isn’t clear, indeed is totally silent, about whether “violent” conduct was formally alleged against Koll. Maybe it was, maybe it wasn’t. Does “violent” conduct have to be specifically alleged, or is the court saying that DC is necessarily a crime of violence? Well, that question appears to be answered by the Instruction Committee, JI 1900: “Conduct is disorderly although it may not be violent ….” Perhaps, then, Koll’s complaint specifically alleged “violent” conduct. But even if it didn't, the fact that Koll didn't raise the argument means that the opinion didn't precedentially resolve it.

Assuming you’ve read this far, why on earth should you care about any of this? For one thing, the gun ban is a collateral (as opposed to direct) consequence of a conviction, e.g., State v. Frank J. Kosina, 226 Wis.2d 482, 595 N.W.2d 464 (Ct. App. 1999), so that a) the burden of informing the defendant of the disqualifying effect falls on counsel (rather than the court should the defendant enter a guilty plea); b) the defendant’s belated discovery of this information after conviction will not be a ground to withdraw a guilty plea; c) maybe (it remains to be seen) in some instances some sort of insulation may follow by amending the complaint’s factual allegations and/or stipulating to a different set of facts, or even amending the specific formal element alleged. Perhaps attention ought to be given, as part of any plea-bargaining, to amending the formally charged alternative to something other than “violent” conduct. Thought should be given, as well, to making the contemporaneous record clear that the guilty plea is premised on avoidance of the gun ban—see, in this regard, the self-same Koll’s companion case, State v. Koll, 08-AP1403, 4/8/09) (Koll allowed to withdraw plea to the very DC conviction at issue, on the theory he “was actively misinformed as to a collateral consequence of his plea agreement,” namely the gun ban). Undoubtedly, other implications will occur to you, but the larger point seems pretty clear: this is going to be a recurrent problem.

One last observation. The court of appeals mentions, literally in passing (¶6), that it “must determine whether Koll’s conviction for disorderly conduct prohibits him, under 18 U.S.C. § 921(a)(33)(A), from exercising his constitutional right to bear arms.” Also, ¶12 (“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.” We’ll put aside for now whether the 2nd A applies—very much up in the air—rather than Art. I, § 25 which clearly does apply.) These glancing references mark the only times the constitutional right is mentioned. It’s therefore probably fair to assume that while the court may deem the right’s very existence to be non-controversial, the court equally thinks the right completely irrelevant to the analysis. Nothing, then, like a constitutional right observed only with such apparent disdain. Does a fundamental right trigger a requirement that its impairment be accomplished as reasonably narrowly as possible? Someone will have to make the argument before we find out.

Disorderly Conduct - Interference with Right to Protest in Public Place
Ralph Ovadal v. City of Madison, 7th Cir No. 04-4030, 7/19/05
Issue/Holding: Use of disorderly conduct to Overdal's peaceful protest (displaying large signs on Beltline pedestrian overpass) was not unconstitutionally vague as applied to him; however, remand required to determine whether the ban was content neutral and narrowly tailored.
Disorderly Conduct -- Private Mailings
State v. Glenn F. Schwebke
, 2002 WI 55, affirming 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213
For Schwebke: Keith A. Findley, UW Law School
Issue: Whether private, anonymous mailings to several individuals may support prosecution for disorderly conduct.
Holding: "¶26... (T)he plain language of the statute does not specifically require a 'public' disturbance. Instead, the statute only requires 'a disturbance.' Along these lines, all that we have required for a disruption is one that affects 'good order;' we have not specifically required a disruption to 'public order.' Certainly, the failure to use such a modifier suggests that the statute does not require the conduct to necessarily reach the public in some capacity....
"¶30. ... (T)he disorderly conduct statute does not necessarily require disruptions or disturbances that implicate the public directly. The statute encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that this disturbance or disruption will spill over and disrupt the peace, order or safety of the surrounding community as well. Conduct is not punishable under the statute when it tends to cause only personal annoyance to a person. See Douglas D., 2001 WI 47, ¶27. An examination of the circumstances in which the conduct occurred must take place, considering such factors as the location of the conduct, the parties involved, and the manner of the conduct.
"¶31.... Nevertheless, we conclude that the disorderly conduct statute requires, at a minimum, that, when the conduct tends to cause or provoke a disturbance that is private or personal in nature, there must exist the real possibility that this disturbance will spill over and cause a threat to the surrounding community as well. In this respect, the state's interest in maintaining peace and order in the community is not limited only to threats of riots or interference with traffic upon public streets. Certainly, as in domestic disputes, even though the disturbance may only occur on a private level, such conduct affects the overall safety and order in the community, and the state has an interest in regulating this conduct as well. 

"¶32. Based on this analysis, we conclude that the disorderly conduct statute was appropriately applied to Schwebke's conduct in this case. In each instance, the conduct at issue, in light of the circumstances, went beyond conduct that merely tended to annoy or cause personal discomfort in another person...."
(Note: The court also upholds the prosecution against constitutional challenges, stressing that any content of "speech" or "communication" is merely incidental to "repeated mailings to related recipients containing unwelcome gifts and numerous newspaper clippings." ¶¶38-39.)
Issue: Whether the evidence of these mailings was sufficient to sustain the convictions.
Holding: "¶41.... (T)he elements in this case required (1) otherwise disorderly conduct, which must be similar to the conduct enumerated in the statute in having a tendency to disrupt good order, and (2) under circumstances that tended to cause or provoke a disturbance.
"¶42. The mailings sent to Robbie Twohig show an obsessive interest from an unidentified person in her life. Although the messages sent were not overtly threatening, the evidence showed a person who was obsessively interested in every detail of Twohig's life. The subsequent mailings exemplified the extent of the obsession, including songs that indicate the sender would perhaps be watching 'every move she makes.' Such conduct certainly has the tendency to disrupt the peace, safety, and good order because they were unwelcome advances and the extent of this obsession was abusive in nature. Under such circumstances, the conduct was likely to cause or provoke a disturbance because such conduct would cause concern from other members of the community, including the police."
(Mailings to Twohig's sister and ex-boyfriend also established disorderly conduct, because they similarly evinced "an obsessive interest" in the, and evoked concern from, the recipient. ¶¶43-44.)
Disorderly Conduct -- Written Speech Alone.
State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, reversing unpublished court of appeals decision
For Douglas D.: Eileen A. Hirsch, SPD, Madison Appellate
Issue1: Whether purely written speech may be punished as disorderly conduct, § 947.01, even where no disturbance results.
Holding: The disorderly conduct statute, applied to speech alone, is neither overbroad nor "underbroad" (i.e., discriminating on the basis of content), and therefore "the First Amendment does not inherently bar the State from applying § 947.01 to unprotected speech, even if the unprotected speech is purely written speech." ¶ 21.
Issue2: Whether a student's writing assignment satisfied the requirements of disorderly conduct.
Holding: Though disorderly conduct "requires more than mere offensive speech or behavior," threatening a public school teacher while in school is the type of conduct that may tend to cause or provoke a disturbance and therefore satisfy § 947.01. ¶28. However, the threat must be a "true" one¶¶31-32, and in this case the alleged threat, which was part of a 13-year-old boy's creative writing assignment, was "impetuous" and at least partly in jest, and in context did not amount to a true threat. ¶39.
Go To COA Brief
Go To S Ct Brief
Disorderly Conduct -- Speech Alone -= "True Threat" Exception to First Amendment
State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712, affirming unpublished court of appeals opinion
For A.S.: Stephen P. Hurley, Marcus J. Berghahn
Issue1: Whether it is permissible under the first amendment to apply the disorderly conduct statute, § 947.01, to speech alone.
Holding: "¶17 We conclude that application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable."
Issue2: Whether statements fell within the "true threat" exception to the first amendment, so as to support a disorderly conduct charge.
Holding: Applying the objective test enunciated in State v. Perkins, 2001 WI 46: "¶23 In applying the test to A.S.'s statement, we conclude that his statements, as alleged in the petition, did constitute true threats. Under the totality of the circumstances, a reasonable speaker in the position of A.S. would foresee that reasonable listeners would interpret his statements as serious expressions of an intent to intimidate or inflict bodily harm. M.L. told him that his statements were scaring her. She asked him several times to stop making the statements. The recent events at Columbine High School, which A.S. made reference to during the course of his statements, heightened the anxiety of the listeners. A reasonable person in the position of A.S. had to know that his listeners were concerned about what had happened at Columbine and about what could happen if A.S. was determined to carry out his threats."
Issue3: Whether the delinquency petition established probable cause to support a disorderly conduct charge.
Holding: The allegedly "graphic detail" provided by A.S. as to how he would kill or seriously harm specifically named individuals, in the context of a discussion of a recent school shooting, supported the first element, either abusive or "otherwise disorderly" conduct. ¶¶28-34. The second element, tending to cause or provoke a disturbance, was also supported: under the circumstances, "such violent threats to kill and seriously harm others could only serve to frighten and cause serious concern to the listeners." ¶37. (Court further noting, ¶¶39-40, that the reaction of the listeners is probative, but "an immediate physical and visible reaction" isn't necessary.)
Harassment, §§ 947.013(1m)(b), (1r) -- Sufficiency of Evidence -- Act "Accompanied By" Credible Threat
State v. Michael A. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998)
For Sveum: Robert T. Ruth
Sveum contends that the evidence was insufficient to prove that "[t]he act [was] accompanied by a credible threat." The only threats alleged in this case occurred on October 16, 1994, when Sveum, among other things, threatened to "blow [Johnson's] head off." The harassing conduct at issue, on the other hand, did not occur until April 16, 1996, and afterwards. Sveum argues that the acts were not accompanied by the threats because they did not occur at about the same time.


.. Using the common and approved meaning of "accompany," we conclude that Sveum's acts were accompanied by his threats if the threats occurred or existed in association with the acts.

Sveum does not argue that the threats of October 16, 1994, did not exist at the time of the harassing acts alleged in the complaint. Johnson testified that after she received the hang-up calls on April 16, 1996, she was very afraid that Sveum would hurt her. Based on Johnson's reaction to the phone calls, a reasonable jury could find that Sveum's threats still caused Johnson to fear death or great bodily harm as of April 16, 1996. Therefore, a reasonable jury could find that the threats still existed in Johnson's mind at the time that the harassing acts occurred.