State v. Christen

396 Wis.2d 705

958 N.W.2d 746

2021 WI 39

STATE of Wisconsin, Plaintiff-Respondent,

v.Mitchell L. CHRISTEN, Defendant-Appellant-Petitioner.

No. 2019AP1767-CR

Supreme Court of Wisconsin.

Oral Argument: January 21, 2021

Opinion Filed: May 4, 2021

For the defendant-appellant-petitioner, there were briefs filed by Steven Roy, Sun Prairie. There was an oral argument by Steven Roy.

For the plaintiff-respondent, there was a brief filed by Nicholas S. DeSantis, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Nicholas S. DeSantis.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ROGGENSACK, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 This is a review of an unpublished decision of the court of appeals, State v. Christen, No. 2019AP1767-CR, unpublished slip op., 2020 WL 1271117 (Wis. Ct. App. Mar. 17, 2020), affirming the Dane County circuit court's¹ judgment convicting Mitchell Christen of operating or going armed with a firearm while intoxicated, contrary to Wis. Stat. § 941.20(1)(b) (2017-18).²

¶2 Christen challenges his conviction arguing that Wis. Stat. § 941.20(1)(b) is unconstitutional as applied to him. He does not raise a facial challenge to the statute. Specifically, Christen claims that the statute violates his fundamental Second Amendment right to armed self-defense as held in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).³ In Heller, the United States Supreme Court recognized that the core of the Second Amendment is the right to possess or carry a firearm for self-defense. Id. at 635, 128 S.Ct. 2783.

¶3 However, as to Christen's as-applied challenge, we conclude Wis. Stat. § 941.20(1)(b) does not strike at the core right of the Second Amendment because he did not act in self-defense. Moreover, we conclude that § 941.20(1)(b) does not severely burden his Second Amendment right. Accordingly, we apply intermediate scrutiny to Christen's as-applied challenge.

Because § 941.20(1)(b) is substantially related to the important government objective of protecting public safety, it survives intermediate scrutiny as applied to Christen.

¶4 Accordingly, we conclude that Christen's as-applied challenge to Wis. Stat. § 941.20(1)(b) fails. Therefore, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 This case involves somewhat conflicting testimony about Christen arming himself in self-defense. Christen, his roommates, and his roommates’ friends had been drinking alcohol on the evening of February 2, 2018. There was conflicting testimony about how much and to what extent there was arguing and pushing among them. However, the testimony was uncontroverted that Christen did arm himself. The jury was called upon to weigh and consider the evidence and determined that Christen went armed, was intoxicated, and did not act in self-defense.

¶6 The jury heard that Christen and his two roommates, B.H. and C.R., had a rocky relationship. This rocky relationship came to a head on the night that gave rise to this case, February 2, 2018. On that night, Christen and B.H. got in an argument, which C.R. and a friend, K.L., overheard. Prior to the argument, all of the men had been drinking alcohol. At the conclusion of the initial argument, Christen went back to his room, and C.R., B.H., and K.L. left to go to a bar. B.H. testified that before they went to the bar that night Christen said "something aggressive" and had called C.R.’s mother a "piece of trash drunk."

¶7 Some point later in the night, C.R., B.H., and K.L. returned to the apartment. Another friend of the men, M.A., joined them after they returned. Christen opened the door for M.A. and said, "Here's the asshole roommates you were looking for ...."

¶8 The jury also heard that Christen, C.R., and M.A. were in an argument. Christen had insulted C.R.’s mother, and M.A. intervened. Christen testified that M.A. pushed Christen with his chest up against Christen's doorframe. Christen testified that, as a response to M.A.’s intervention, he said, "[he] wasn't going to be a victim and [he] had a weapon and [he] wasn't afraid to use it." He testified that he then pointed to his handgun. He continued his testimony, stating, "I just turned and pointed that it was where I had kept it on my nightstand and I said I feel intimidated. I'm into my bedroom, which is small. I have nowhere else to go. I was presenting the weapon as a deterrent." Upon Christen pointing to the handgun, the argument ended, and Christen closed his bedroom door.

¶9 At some point, M.A. stopped in front of Christen's room, and they exchanged words. M.A. testified that he knew Christen was upset so he followed Christen to his room and said, "hey, just take it easy, have fun with us." M.A. stated that Christen responded by picking up his firearm and saying, "get out of here or I will shoot you." M.A. testified that he shut the door and returned to the others. C.R. similarly testified that he watched M.A. stop in front of Christen's room and saw a "gun come up between [M.A.] and [Christen]." He confirmed that M.A. shut the door, returned to the others, and said "[your] fucking roommate just pulled a gun on me. What the fuck." Christen characterized the incident differently. He stated that after M.A. opened the door, he picked up his handgun, "held it sideways towards the wall away from [M.A.]," and told M.A. to leave, which M.A. did. ¶10 Christen began recording the situation on his cellphone after this second interaction with M.A. The jury viewed the video at trial; it began with Christen saying that "[i]f someone comes through this door [he] will shoot them." He further told M.A., who was standing in front of his door, that M.A. "should get the fuck out of here." In response, M.A. threatened to call 911. Christen stated that he didn't "give a fuck" and that M.A. needed to leave. M.A. responded, "Seriously. Be nice, be nice man, be nice." Christen can later be heard saying on the video the following:

They're not listening; I've asked them to leave. I'm within my right. I said go away, get away from my house, away from my room. They should leave it would just be smart for them.

¶11 Not long after that, Christen said that he was going to the kitchen with his handgun because he did not "trust anybody in this house." Christen came out of his room in underwear displaying a handgun tucked in his waistband. The video then becomes jostled. The testimony revealed that M.A. disarmed him, and Christen returned to his room. C.R. testified that he heard Christen cock his shotgun, which the video confirms. K.L. disassembled the handgun and placed the disassembled handgun in the cabinets.

¶12 After he returned to his room, Christen stopped the recording on his phone and called 911. The 911 recording was also played for the jury. Christen told the 911 operator that M.A. stole his handgun. He also stated that "[i]f someone comes through [his] door, they're getting a fucking face full of lead." Over the course of the nearly 20-minute 911 phone call, Christen denied threatening M.A. Further, when the 911 dispatcher asked Christen whether M.A. attacked him before he left with his handgun, Christen said "not physically."

¶13 The police arrived in response to Christen's 911 call. Christen's two roommates and their two friends exited the apartment and reported to the police that Christen was intoxicated and had threatened them with his firearms. Christen remained in the apartment for approximately 30 minutes before exiting the apartment unarmed. One of the officers who interacted with Christen after he exited the apartment testified that as he spoke to Christen he "observed an odor of intoxicants coming from [Christen's] breath and mouth [and] his eyes [were] glassy and bloodshot." Other members of law enforcement testified that Christen appeared "worked up" and "paranoid."

¶14 The police arrested Christen and brought him to the booking area of the jail. While in the booking area, Christen claimed he armed himself in self-defense.

¶15 On February 4, 2018, the circuit court found probable cause that Christen did commit a crime. Two days later, the State filed a criminal complaint in the circuit court charging Christen with three counts: Count 1, pointing a firearm at another, contrary to Wis. Stat. § 941.20(1)(c), a Class A Misdemeanor; Count 2, operating or going armed with a firearm while intoxicated, contrary to § 941.20(1)(b), a Class A Misdemeanor; and Count 3, disorderly conduct, contrary to Wis. Stat. § 947.01(1), a Class B Misdemeanor. Christen made his initial appearance the same day.

¶16 On March 21, 2018, Christen filed a motion to dismiss Count 2, operating or going armed with a firearm while intoxicated, arguing that it violated his Second Amendment right. The circuit court held a hearing on this motion to dismiss on July 13, 2018. The court concluded that Wis. Stat. § 941.20(1)(b), the statute that Christen challenged, "is focused narrowly enough to withstand [the] constitutional challenge that's been raised" and denied Christen's motion.

¶17 On October 17, 2018, Christen's jury trial began. During the trial, the jury heard testimony from Christen, the individuals in the apartment, and the officers who arrived on the scene. After both sides rested their arguments, the court instructed the jury.

¶18 As part of the jury instructions, the circuit court read a self-defense instruction on each count. The circuit court informed the jury that it could find Christen guilty of operating or going armed with a firearm while intoxicated only if it was "satisfied beyond a reasonable doubt that ... [Christen] did not act lawfully in self-defense." The parties then made closing arguments, and the court submitted the case to the jury.

¶19 After deliberating, the jury returned a verdict of...