State v. Mitchell L. Christen

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 17, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1767-CR Cir. Ct. No. 2018CM198

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MITCHELL L. CHRISTEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
NICHOLAS J. McNAMARA, Judge. Affirmed.

¶1 BLANCHARD, J.1 Mitchell Christen was found guilty at a jury
trial of charges that included operating or going armed with a firearm while under

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1767-CR

the influence of an intoxicant, in violation of WIS. STAT. § 941.20(1)(b). Christen
argued in the circuit court that the § 941.20(1)(b) charge should be dismissed on
the ground that it violates the Second Amendment in all cases in which it is
applied to the conduct of any person who is inside his or her residence, as he was
in this case. The circuit court declined to dismiss the charge. The court rejected
Christen’s “broad constitutional argument that there’s no way that this could be
consistent with the constitution in light of” the decision of the U.S. Supreme Court
in District of Columbia v. Heller, 554 U.S. 570 (2008).2 Christen apparently
intends to renew the same argument on appeal. I reject the argument as a
misframed as-applied constitutional challenge and accordingly affirm.3

¶2 WISCONSIN STAT. § 941.20(1)(b) is located in a statute entitled
“Endangering safety by use of dangerous weapon” and criminalizes at the
misdemeanor level the following conduct, without regard to the location of the
conduct: “[o]perat[ing] or go[ing] armed with a firearm while … under the
influence of an intoxicant.”

¶3 According to Christen’s own summary in his appellate brief,
evidence at trial included the following account, which features him handling two
firearms in the course of disputes in his apartment after substantial drinking:

2
In Heller, the U.S. Supreme Court concluded that the District of Columbia’s near-
complete ban on keeping operable handguns in the home infringed on “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home,” an interest that the Court
described as “elevate[d] above all other [Second Amendment] interests.” District of Columbia v.
Heller, 554 U.S. 570, 574-75, 635 (2008) (emphasis added).
3
The State fails to file a brief in this appeal, despite our order of March 9, 2020,
cautioning that this failure tacitly concedes circuit court error. However, for the reason explained
in the text, I conclude that Christen’s failure to show error by the circuit court is so plain that
summary reversal would not be reasonable.

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No. 2019AP1767-CR

(1) during the course of one evening, Christen “consumed four beers and one
shot”; (2) on the same evening, after this drinking, during the course of a dispute
with roommates and visitors of the roommates in their shared apartment, Christen
“picked up his handgun,” and told someone trying to enter his room to get out of
the room; (3) after this, “[f]or his protection,” Christen “tucked his handgun into
his waist-band” for a trip to the kitchen; and (4) after a physical interaction in
which someone “hit” him in the chest and “grabbed” his handgun, Christen
“quickly retreated to his room, closed the door, retrieved his secondary weapon,
and called 911.”

¶4 In the circuit court, Christen filed a purported constitutional
challenge based on the premise that “WIS. STAT. § 941.20(1)(b) violates his right
to bear arms when it is applied to him, or any other citizen, while he is present
within his own home.” In essence, Christen argued that this position is supported
by the following passage in Heller, in particular the portions that I now
emphasize:

[T]he inherent right of self-defense has been central to the
Second Amendment right. The handgun ban [of the
District of Columbia at issue in Heller] amounts to a
prohibition of an entire class of “arms” that is
overwhelmingly chosen by American society for that
lawful purpose. The prohibition extends, moreover, to the
home, where the need for defense of self, family, and
property is most acute. Under any of the standards of
scrutiny that we have applied to enumerated constitutional
rights, banning from the home “the most preferred firearm
in the nation to ‘keep’ and use for protection of one’s home
and family,” would fail constitutional muster.

Heller, 554 U.S. at 628-29 (emphasis added) (footnote and citation omitted).

¶5 Before the circuit court, the State’s responsive arguments included
reliance on the reasoning in United States v. Yancey, 621 F.3d 681 (7th Cir. 2010)

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No. 2019AP1767-CR

(per curiam), a post-Heller opinion. In Yancy, the court stated that “most scholars
of the Second Amendment agree that the right to bear arms was tied to the concept
of a virtuous citizenry and that, accordingly, the government could disarm
‘unvirtuous citizens.’” Id. at 684-85 (quoting United States v. Vongxay, 594 F.3d
1111, 1118 (9th Cir. 2010) and citing extensive authority cited in Vongxay,
omitted here). The court explained in Yancey that the government may
constitutionally “keep guns out of the hands of presumptively risky people” and
that its interest in this regard is “without doubt an important one.” Id. at 683-84.

¶6 On appeal, Christen makes clear that he is presenting an “as applied”
constitutional challenge to WIS. STAT. § 941.20(1)(b). However, as our supreme
court explained in State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63,

[I]n an as-applied challenge, we assess the merits of the
challenge by considering the facts of the particular case in
front of us, “not hypothetical facts in other situations.”
Under such a challenge, the challenger must show that his
or her constitutional rights were actually violated.

Id., ¶13 (citations omitted).

¶7 Under this standard, it is fatal to Christen’s purported as-applied
challenge that, as he did in the circuit court, he relies entirely on hypotheticals
about those who do not endanger the safety of others, and avoids even attempting
to address the facts of his own case. It is fatal, in other words, that Christen fails
to explain why, based on the facts of this case, WIS. STAT. § 941.20(1)(b) actually
violated his Second Amendment rights. Indeed, after the statement of facts and
the case, Christen’s brief makes only passing references to his own conduct as
proven at trial and does not come close to applying pertinent legal principles to
that conduct. This failure is so complete that I do not need to address the standard
of review or other points referenced in his brief.

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No. 2019AP1767-CR

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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