2024 WI App 38

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2023AP70-FT

Complete Title of Case: 

†Petition for Review Filed

SCOT VAN OUDENHOVEN,

 PETITIONER-APPELLANT,†

 V.

WISCONSIN DEPARTMENT OF JUSTICE,

 RESPONDENT-RESPONDENT.

Opinion Filed: June 4, 2024

Submitted on Briefs: March 13, 2023

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Gill, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the 

briefs of John Monroe, Dawsonville, Georgia. 

Respondent

ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on 

the brief of Joshua L. Kaul, attorney general, and Brian P. Keenan, 

assistant attorney general. 
2024 WI App 38

COURT OF APPEALS

DECISION

DATED AND FILED

June 4, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2023AP70-FT Cir. Ct. No. 2022CV580

STATE OF WISCONSIN IN COURT OF APPEALS

SCOT VAN OUDENHOVEN,

 PETITIONER-APPELLANT,

 V.

WISCONSIN DEPARTMENT OF JUSTICE,

 RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Winnebago County: 

TERESA S. BASILIERE, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ. 

¶1 GILL, J. Scot Van Oudenhoven appeals an order affirming a 

decision of the Wisconsin Department of Justice (“DOJ”) denying his application 
No. 2023AP70-FT

2

to purchase a “handgun”1in Wisconsin. The DOJ reasoned that because 

Van Oudenhoven had been convicted of a Wisconsin crime related to domestic 

violence, the purchase would violate 18 U.S.C. § 922(g)(9), which states that an 

individual “who has been convicted in any court of a misdemeanor crime of 

domestic violence” cannot “possess or ... receive any firearm.” The DOJ reached 

this conclusion even though Van Oudenhoven’s relevant conviction was expunged 

under Wisconsin law pursuant to WIS. STAT. § 973.015(1m). 

¶2 On appeal, Van Oudenhoven argues that the DOJ erroneously 

interpreted the applicable laws.2 First, Van Oudenhoven asserts that the DOJ did 

not have the authority to deny his handgun purchase under 18 U.S.C. § 922(g)(9). 

Second, Van Oudenhoven asserts that even if the DOJ had such authority, that 

statute did not apply to his misdemeanor conviction because the conviction was 

expunged. See 18 U.S.C. § 921(a)(33)(B)(ii) (“A person shall not be considered to 

 

1

 For purposes of WIS. STAT. § 175.35(2g)(c)4. (2021-22), the relevant Wisconsin statute, 

a “handgun” is defined as “any weapon designed or redesigned, or made or remade, and intended 

to be fired while held in one hand and to use the energy of an explosive to expel a projectile through 

a smooth or rifled bore.” Sec. 175.35(1)(b) (2021-22). For purposes of 18 U.S.C. § 922(g)(9), a 

“firearm” is defined as either “(A) any weapon ... which will or is designed to or may readily be 

converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such 

weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. 

§ 921(a)(3). Van Oudenhoven does not argue on appeal that his Wisconsin handgun fails to meet 

the definition of a firearm under federal law. 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted. 

2

 This is an expedited appeal under WIS. STAT. RULE 809.17. 
No. 2023AP70-FT

3

have been convicted of [a misdemeanor crime of domestic violence] if the 

conviction has been expunged or set aside.”).3 

¶3 We conclude that federal law authorizes the DOJ to deny an 

individual’s firearm purchase request in Wisconsin. Under federal law, which was 

the basis for denying Van Oudenhoven’s purchase at issue in this case, the DOJ’s 

authority to deny a firearm purchase in Wisconsin is conferred to it by the federal 

government under 28 C.F.R. §§ 25.2 and 25.6(g)(2) (2023).4 The DOJ must deny a 

firearm purchase if the “receipt of a firearm by a prospective transferee would 

violate 18 U.S.C. [§ ]922 or state law.” Sec. 25.6(g)(2). We further conclude that 

Van Oudenhoven was convicted of a misdemeanor crime of domestic violence as 

that term is defined by federal law. See § 922(g)(9); 18 U.S.C. § 921(a)(33)(A)(ii). 

¶4 We also conclude that Van Oudenhoven’s misdemeanor conviction 

was not “expunged or set aside” as those terms are used in 18 U.S.C. 

§ 921(a)(33)(B)(ii). As other jurisdictions have articulated, the terms “expunged or 

set aside” in § 921(a)(33)(B)(ii) must be construed synonymously, thereby requiring 

the “state procedure to completely remove all effects of the conviction at issue.” 

See, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1245 (10th Cir. 

2008). Consistent with our state supreme court’s decision in State v. Braunschweig, 

2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, expungement pursuant to WIS.

STAT. § 973.015(1m) does not “completely remove all effects” of a conviction 

because the underlying conviction remains valid. See Braunschweig, 384 Wis. 2d 

 

3

 Van Oudenhoven does not challenge the DOJ’s decision on Second Amendment grounds 

or on jurisdictional grounds. See U.S. CONST. amend. II; 18 U.S.C. § 922(g)(9) (including an 

element that the firearm in question must have been shipped or transported in interstate or foreign 

commerce). 

4

 All references to the Code of Federal Regulations are to the 2023 version unless 

otherwise noted. 
No. 2023AP70-FT

4

742, ¶22. Section 973.015(1m) “merely deletes the evidence of the underlying 

conviction from court records.” Braunschweig, 384 Wis. 2d 742, ¶22. We 

therefore affirm the circuit court’s order upholding the DOJ’s decision denying Van 

Oudenhoven’s handgun purchase. 

BACKGROUND

¶5 The relevant underlying facts are not in dispute. Van Oudenhoven 

was convicted in Calumet County case No. 1994CM113 of misdemeanor battery as 

an act of domestic violence against a woman with whom he shares a child. See WIS.

STAT. §§ 940.19(1), 968.075(1)(a).5 In 2019, the Calumet County Circuit Court 

granted Van Oudenhoven’s petition for expungement of the conviction.6 The order 

stated that the clerk of court “is ordered to expunge the court’s record of the 

conviction.” 

¶6 In 2022, Van Oudenhoven attempted to purchase a handgun in 

Wisconsin. After searching Van Oudenhoven’s record in a state database, the 

DOJ’s Crime Information Bureau Firearms Unit (“Unit”) denied the purchase based 

upon Van Oudenhoven’s misdemeanor battery conviction. Van Oudenhoven 

sought review of that denial pursuant to WIS. ADMIN. CODE § Jus 10.08(2) (Aug. 

 

5

 The relevant portions of these statutes have not changed since 1994. 

6

 It is unclear from the record why Van Oudenhoven’s 1994 conviction was expunged in 

2019 insomuch as “if a circuit court is going to exercise its discretion to expunge a record, the 

discretion must be exercised at the time of the sentencing proceeding.” See State v. Matasek, 2014 

WI 27, ¶6, 353 Wis. 2d 601, 846 N.W.2d 811. However, the DOJ does not challenge the validity 

of the expungement, and we therefore will not address this issue further. 
No. 2023AP70-FT

5

2012),7and the director of the Unit sustained the earlier decision denying the 

handgun purchase. 

¶7 Thereafter, Van Oudenhoven appealed the director’s decision to the 

administrator of the DOJ’s Division of Law Enforcement Services.8 See WIS.

ADMIN. CODE § Jus 10.09(1). The DOJ sustained the director’s denial of the 

handgun purchase based on Van Oudenhoven’s misdemeanor conviction. The DOJ

reasoned that WIS. STAT. § 175.35 and WIS. ADMIN. CODE ch. Jus 10 require the 

agency to “consider state and federal law when conducting a firearms restrictions 

search.” According to the DOJ, under federal law, the agency was required to deny 

the purchase because Van Oudenhoven was convicted of a “misdemeanor crime of 

domestic violence” notwithstanding the fact that Van Oudenhoven’s conviction was 

expunged under Wisconsin law. See 18 U.S.C. §§ 922(g)(9), 921(a)(33)(B)(ii). 

Relying on our supreme court’s holding in Braunschweig, the DOJ stated that while 

Van Oudenhoven’s misdemeanor conviction was expunged, the conviction still 

counted under federal law so as to prohibit the purchase because the expungement 

did not invalidate the underlying conviction. 

¶8 Van Oudenhoven filed a petition for judicial review in Winnebago 

County Circuit Court.9 See WIS. STAT. § 227.52. Following briefing from the 

parties, the court sustained the DOJ’s decision. This appeal follows. 

DISCUSSION

 

7

 All references to WIS. ADMIN. CODE ch. Jus 10 are to the August 2012 register unless 

otherwise noted. 

8

 We refer to the administrator’s decision as the DOJ’s decision generally. 

9

 Van Oudenhoven is a resident of Winnebago County. See WIS. STAT. § 227.53(1)(a)3. 

This appeal is venued in this court pursuant to WIS. STAT. § 752.21(2). 
No. 2023AP70-FT

6

¶9 “On a WIS. STAT. ch. 227 appeal, we review the decision of the 

agency, not the circuit court.” Myers v. DNR, 2019 WI 5, ¶17, 385 Wis. 2d 176, 

922 N.W.2d 47. Unless we determine there is “a ground for setting aside, 

modifying, remanding or ordering agency action or ancillary relief under a specified 

provision of this section, [we] shall affirm the agency’s action.” WIS. STAT.

§ 227.57(2). The facts of this case are undisputed, so we address only questions of 

law—including federal and state statutory interpretation—which we review de 

novo, while affording “due weight” to “the experience, technical competence, and 

specialized knowledge of the agency involved.” See § 227.57(10), (11); Tetra Tech 

EC, Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21; Doubek v. 

Kaul, 2022 WI 31, ¶3, 401 Wis. 2d 575, 973 N.W.2d 756. 

¶10 Statutory interpretation begins with the statute’s language, which “is 

given its common, ordinary, and accepted meaning, except that technical or 

specially-defined words or phrases are given their technical or special definitional 

meaning.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 

Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language “in the context in 

which it is used; not in isolation but as part of a whole; in relation to the language 

of surrounding or closely-related statutes; and reasonably, to avoid absurd or 

unreasonable results.” Id., ¶46. 

I. The DOJ has the authority to deny a Wisconsin-based firearm purchase 

that would violate 18 U.S.C. § 922. 

¶11 We first conclude, contrary to Van Oudenhoven’s arguments on 

appeal, that the DOJ is authorized by federal law to deny a Wisconsin-based firearm 

purchase due to a prospective buyer’s conviction for a misdemeanor crime of 

domestic violence. As we will explain, the DOJ has been delegated by the federal 
No. 2023AP70-FT

7

government as the federal law liaison for firearm purchases in Wisconsin. Here, the 

DOJ denied Van Oudenhoven’s purchase pursuant to federal law, not state law. 

A. Handgun purchases in Wisconsin under state law

¶12 At the state level, “[t]he purchase of handguns in Wisconsin is 

regulated by WIS. STAT. § 175.35, which provides the DOJ with authority to 

promulgate rules regarding the transfer of such firearms.” See Moran v. DOJ, 2019 

WI App 38, ¶13, 388 Wis. 2d 193, 932 N.W.2d 430. Pursuant to that authority, a 

handgun dealer must obtain from a prospective handgun buyer a completed 

notification form, which the dealer then forwards to the DOJ. WIS. ADMIN. CODE

§ Jus 10.06(2)(a)1. After receiving the form, the DOJ must determine whether the 

purchaser is prohibited under state law from possessing a firearm. See Moran, 388 

Wis. 2d 193, ¶13; § Jus 10.06(2)(b), (c). To accomplish that task, the DOJ must 

search the purchaser’s “state criminal history record and the national criminal 

history record maintained by the” Federal Bureau of Investigation (FBI). Sec. Jus 

10.06(2)(a)(2), (b); WIS. ADMIN. CODE § Jus 10.03(11). 

¶13 WISCONSIN STAT. § 175.35(2g)(c)4. requires the DOJ to notify a 

dealer after receiving information from the records search as follows:

a. If the search indicates that the transferee is prohibited 

from possessing a firearm under [WIS. STAT. §] 941.29, 

the [DOJ] shall provide the firearms dealer with a unique 

nonapproval number.... 

b. If the search indicates that the transferee is not prohibited 

from possessing a firearm under [WIS. STAT. §] 941.29, 

the [DOJ] shall provide the firearms dealer with a unique 

approval number. 

c. If the search indicates that it is unclear whether the 

person is prohibited under state or federal law from 

possessing a firearm and the [DOJ] needs more time to 

make the determination, the [DOJ] shall make every 
No. 2023AP70-FT

8

reasonable effort to determine whether the person is 

prohibited under state or federal law from possessing a 

firearm and notify the firearms dealer of the results as 

soon as practicable but no later than 5 working days after 

the search was requested. 

Thus, § 175.35(2g)(c)4.a.-c. outlines the Wisconsin-specific standards for 

approving or denying a handgun purchase, which “turn[] upon whether the 

prospective purchaser is prohibited from possessing a firearm under ... § 941.29.” 

See Moran, 388 Wis. 2d 193, ¶14. 

¶14 WISCONSIN STAT. § 175.35(2g)(c)4.c. also recognizes the DOJ’s 

authority to deny a handgun purchase pursuant to federal law, although the statute 

does not specifically outline that authority. See Moran, 388 Wis. 2d 193, ¶14. 

Instead, the DOJ’s authority to deny a handgun—specifically, a “firearm”—

purchase under federal law is, of course, governed by federal law. 

B. Firearm purchases in Wisconsin under federal law

¶15 The National Instant Criminal Background Check System (NICS) was 

established by the federal government pursuant to the Brady Handgun Violence 

Prevention Act. See 34 U.S.C. § 40901(b)(1); 28 C.F.R. § 25.2; Printz v. United 

States, 521 U.S. 898, 902 (1997). The NICS, operated by the FBI, is used to

determine “whether receipt of a firearm by a prospective transferee would violate 

[18 U.S.C. § 922] or State law.” Sec. 40901(b)(1); § 25.2. Prior to selling a firearm 

to a potential buyer, a federal firearm licensee (FFL)10 must contact the NICS 

Operations Center or a “Point of Contact” (POC) to search a database known as the 

NICS Index. See 28 C.F.R. § 25.6(b)-(d). 

 

10

 An FFL is a “person licensed by the [Bureau of Alcohol, Tobacco, Firearms, and 

Explosives (ATF)] as a manufacturer, dealer, or importer of firearms.” 28 C.F.R. § 25.2. 
No. 2023AP70-FT

9

¶16 A POC is a “state or local law enforcement agency serving as an 

intermediary between an FFL and the federal databases checked by the NICS.” 28 

C.F.R. § 25.2. Since 1998, the DOJ has been the POC for Wisconsin handgun 

purchases. Therefore, in Wisconsin, an FFL must contact the DOJ to initiate an 

NICS background check for such purchases. See 28 C.F.R. § 25.6(d). 

¶17 “Upon receiving a request for a background check from an FFL, a 

POC will,” among other things, “[t]ransmit the request ... to the NICS.” 28 C.F.R. 

§ 25.6(e). The NICS will conduct a search of the NICS Index and notify the POC 

of the search results. Sec. 25.6(f). “POCs may also conduct a search of available 

files in state and local law enforcement and other relevant record systems ....” 

Sec. 25.6(e). 

¶18 “[B]ased on the response(s) provided by the NICS, and other 

information available in the state and local record systems, a POC will” “[n]otify 

the FFL that the transfer may proceed, is delayed pending further record analysis, 

or is denied.” 28 C.F.R. § 25.6(g)(2). “Denied” means “denial of a firearm transfer 

based on a[n] NICS response indicating one or more matching records were found 

providing information demonstrating that receipt of a firearm by a prospective 

transferee would violate 18 U.S.C. [§ ]922 or state law.”

11

 28 C.F.R. § 25.2

(emphasis added). 

¶19 In short, federal statutory and regulatory authority requires the DOJ, 

as the Wisconsin POC, to determine whether a handgun purchase would violate 

either state or federal law. Accordingly, pursuant to the plain language of 28 C.F.R. 

§ 25.2, the DOJ was permitted to deny Van Oudenhoven’s purchase if the purchase 

 

11

 The record in this case does not include the NICS communication to the POC—i.e., the 

DOJ. See 28 U.S.C. § 25.6(f). 
No. 2023AP70-FT

10

would violate 18 U.S.C. § 922. See Lynch v. Florida Dep’t of Law Enf’t, 330 So.3d 

140, 141 (Fla. Dist. Ct. App. 2021) (explaining that Florida’s POC must determine 

whether a potential firearm buyer is prohibited from purchasing a firearm under 

§ 922(g)). 

C. “[M]isdemeanor crime of domestic violence”

¶20 Here, as Van Oudenhoven implicitly concedes, his firearm purchase 

would have violated 18 U.S.C. § 922(g)(9), which states that an individual “who 

has been convicted in any court of a misdemeanor crime of domestic violence” 

cannot possess or receive any firearm.12 A “misdemeanor crime of domestic 

violence,” as that term is used in § 922(g)(9), is defined as an offense that is a 

misdemeanor under state law and has an element of “the use or attempted use of 

physical force ... by a person with whom the victim shares a child in common.” 18 

U.S.C. § 921(a)(33)(A)(ii). 

¶21 Van Oudenhoven was convicted of battery as an act of domestic 

abuse. The police report underlying the conviction, which the DOJ reviewed when 

it denied the purchase, states that the victim and Van Oudenhoven had a child 

together at the time of the offense. See WIS. STAT. §§ 940.19(1), 968.075(1)(a)1.; 

Kaul, 401 Wis. 2d 575, ¶6 (whether the domestic violence element in 18 U.S.C. 

§ 921(a)(33)(A)(ii) is satisfied “depends on the facts underlying the conviction, not 

 

12

 Federal law dictates that a denial of a firearm purchase is appropriate where the “receipt 

of a firearm by a prospective transferee would violate 18 U.S.C. [§ ]922 or state law.” 28 C.F.R. 

§ 25.2 (emphasis added). Therefore, the question for the DOJ in this case was whether 

Van Oudenhoven’s successful purchase of the firearm “would violate” § 922(g)(9). If 

Van Oudenhoven purchased the firearm, he would possess and receive the firearm, thus violating 

§ 922(g)(9). 
No. 2023AP70-FT

11

the elements of the charged misdemeanor”). Further, the record demonstrates that 

Van Oudenhoven used or attempted to use physical force.13 

¶22 Thus, the DOJ did not erroneously interpret the law when it 

determined that Van Oudenhoven used physical force against an individual with

whom he shares a child, and, accordingly, barring certain exceptions that we address 

in the next section, he was clearly prohibited from possessing or receiving a firearm 

pursuant to 18 U.S.C. § 922(g)(9). 

II. Van Oudenhoven is barred from possessing a firearm under federal law 

despite the expungement of his misdemeanor conviction for a crime of 

domestic violence. 

¶23 The foregoing analysis does not end the inquiry, however, because

[a] person shall not be considered to have been convicted of 

[a misdemeanor crime of domestic violence] if the 

conviction has been 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. 

See 18 U.S.C. § 921(a)(33)(B)(ii) (emphasis added). Van Oudenhoven’s conviction 

in Calumet County case No. 1994CM113 was expunged in 2019, and the 

expungement certificate did not “expressly provide[]” that Van Oudenhoven was 

 

13

 WISCONSIN STAT. § 940.19(1) includes an element that an individual inflicts bodily 

harm to another with the intent to cause bodily harm to that person without the consent of the 

person. See WIS. STAT. § 940.19(1); WIS JI—CRIMINAL 1220 (2015); Doubek v. Kaul, 2022 WI 

31, ¶7, 401 Wis. 2d 575, 973 N.W.2d 756 (whether the use of force element in 18 U.S.C. 

§ 921(a)(33)(A)(ii) is met depends “‘solely on whether the elements of the crime of conviction 

sufficiently match the elements’ of the relevant federal statute, ‘while ignoring the particular facts 

of the case’” (citation omitted)). 
No. 2023AP70-FT

12

prohibited from possessing or receiving a firearm. Under these circumstances, Van 

Oudenhoven asserts that his misdemeanor conviction was “expunged or set aside”14

under § 921(a)(33)(B)(ii). We agree with the DOJ, however, that Van 

Oudenhoven’s conviction was not “expunged or set aside” as those terms are used 

in § 921(a)(33)(B)(ii). 

A. “[E]xpunged or set aside”

¶24 We must now determine the meaning of “expunged or set aside” to 

ascertain whether Van Oudenhoven was prohibited from purchasing a firearm in 

Wisconsin. Van Oudenhoven first argues, without citation to any authority aside 

from 18 U.S.C. § 921(a)(33)(B)(ii), that “[b]ecause the federal statute contains an 

exception for expunged convictions, federal law is not dependent on the effect under 

state law of the expungement. The federal statute does not require that the state 

expungement have any particular effect on the conviction as a matter of state law.” 

This assertion has no basis in law. While the underlying misdemeanor crime of 

domestic violence, and any subsequent state procedures such as expungement, are 

defined by state law, federal law dictates what constitutes a “conviction” under 

§ 921(a)(33)(B)(ii). See Logan v. United States, 552 U.S. 23, 27-28 (2007)

(discussing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 114-15 (1983), and 

the congressional amendments to § 921 made following that decision). Therefore, 

for a state conviction that has been expunged not to count as a “conviction,” it must 

meet the meaning of “expunged or set aside” in § 921(a)(33)(B)(ii). 

¶25 The terms “expunged” and “set aside” are not defined by federal 

statute. Van Oudenhoven contends that the United States Supreme Court in Logan

 

14

 Van Oudenhoven does not contend that he was “pardoned or has had civil rights 

restored.” See 18 U.S.C. § 921(a)(33)(B)(ii). 
No. 2023AP70-FT

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“announced a common understanding of ‘expungement,’ ‘set-aside,’ ‘pardoned,’ 

and ‘civil rights restored’” when the Court stated, “Each term describes a measure 

by which the government relieves an offender of some or all of the consequences of 

his [or her] conviction.” See Logan, 552 U.S. at 32 (emphasis added). Based on 

that language, Van Oudenhoven appears to assert that “expunged or set aside” 

means the government relieves a former offender of “some” of the consequences of 

his or her conviction. 

¶26 We disagree that the Court in Logan was defining each term with 

specificity or that it stated an expunged or set aside conviction only requires “some” 

of the consequences of a conviction to be vacated. Rather, the Court was simply 

identifying the general differences between those terms and a defendant who retains 

his or her civil rights and is “simply left alone.” See id. at 32, 37 (concluding that 

an individual cannot have his or her civil rights “restored” if he or she was never 

deprived of them to begin with). In addition, and as we will explain, the plain 

meaning of “expunged or set aside” is better described as “a measure by which the 

government relieves an offender of ... all of the consequences of his conviction,” 

rather than “some” consequences. See id. at 32 (emphasis added). 

¶27 Courts interpreting 18 U.S.C. § 921(a)(33)(B)(ii) have consistently 

construed “expunged” and “set aside” synonymously so as to require 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. See, 

e.g., Crank, 539 F.3d at 1245; Jennings v. Mukasey, 511 F.3d 894, 899 (9th Cir.

2007); Pennsylvania St. Police v. Drake, 304 A.3d 801, 806 (Pa. Commw. Ct. 

2023); Bergman v. Caulk, 938 N.W.2d 248, 251 & n.3 (Minn. 2020). Although we 

are not bound by these authorities, see State v. Muckerheide, 2007 WI 5, ¶7, 298 

Wis. 2d 553, 725 N.W.2d 930, we find them useful to our analysis given the 
No. 2023AP70-FT

14

consistency with which courts have interpreted and applied § 921(a)(33)(B)(ii) and 

the various interpretative principles those courts have used in their analyses that 

comport with our principles in Kalal.

15

 

¶28 In particular, the United States Court of Appeals for the Tenth Circuit 

has reasoned that the terms “expunged” and “set aside” must be interpreted 

synonymously so as to “require a complete removal of the effects of a conviction” 

given: (1) the terms’ respective plain meanings; and (2) the structure of the statute. 

See Crank, 539 F.3d at 1245. 

¶29 “First, the plain meaning of ‘expunge’ and ‘set aside’ are nearly 

equivalent.” Id. at 1245. “Expunge” is defined as “[t]o remove from a record ...; to 

erase or destroy.” Expunge, BLACK’S LAW DICTIONARY (11th ed. 2019); cf.

Expungement of record, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The removal 

of a conviction (esp. for a first offense) from a person’s criminal record.”). “Set 

aside” is defined as “[t]o annul or vacate (a judgment, order, etc.).” Set aside, 

BLACK’S LAW DICTIONARY (11th ed. 2019). The plain meanings of the terms 

“expunge”—as opposed to the “expungement of record”—and “set aside” indicate 

that the relevant state procedure must do more than delete the evidence of the 

underlying conviction. Rather, the plain meanings indicate that the state procedure 

must “completely remove all effects of the conviction at issue.” Crank, 539 F.3d 

at 1245. 

 

15

 Van Oudenhoven does not provide an alternative meaning of 18 U.S.C. 

§ 921(a)(33)(B)(ii). Instead, he merely contests the interpretation provided by the DOJ. 
No. 2023AP70-FT

15

¶30 In addition, one of the few federal expungement statutes, 18 U.S.C. 

§ 3607, dictates expungement for certain controlled substance offenses.16 Under 

§ 3607, qualifying individuals found guilty of a controlled substance offense may 

apply to a court to “enter an expungement order.” Sec. 3607(c). “The effect of the 

order shall be to restore such person, in the contemplation of the law, to the status 

he occupied before such arrest or institution of criminal proceedings.” Id. “[A]

conviction that is the subject of an expungement order under [§ 3607(c)], shall not 

be considered a conviction for the purpose of a disqualification or a disability 

imposed by law upon conviction of a crime, or for any other purpose.” Sec. 3607(b). 

The law also provides that any records of the conviction are destroyed. 

Sec. 3607(c). Consequently, federal expungement in the controlled substance 

context completely removes the effects of a conviction, which comports with the 

plain meanings of “expunged” and “set aside” described above. 

¶31 Second, regarding the statute’s structure, the first portion of 18 U.S.C. 

§ 921(a)(33)(B)(ii) lists “four state actions that would remove firearm 

disability: expunging, setting aside, pardoning, or restoring civil rights.” Crank, 

539 F.3d at 1245. The second portion of the statute (the “unless” clause) clearly 

parallels the first portion of the statute; however, it addresses only expunging, 

pardoning, and restoring civil rights. See id. Thus, “[t]he absence of the term ‘set 

 

16

 While the connection between 18 U.S.C. §§ 921(a)(33)(B)(ii) and 3607 may seem 

attenuated at first glance, § 3607 appears to be the only federal statute authorizing expungement of 

a conviction, as opposed to expungement of records. See United States v. Lucido, 612 F.3d 871, 

874 (6th Cir. 2010); United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994). There are at least 

two other federal expungement statutes; however, neither relate to expunging convictions. See 34 

U.S.C. § 12592(d) (instructing the director of the FBI on the “expungement of [DNA] records”);

21 U.S.C. § 844(a)(j) (listing the “[e]xpungement procedures” related to civil penalties for the 

possession of small amounts of controlled substances). 
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aside’ [in the second portion] suggests that Congress felt that ‘expungement’ in the 

‘unless’ clause covered both ‘set asides’ and ‘expungements.’” Id. 

¶32 We find further support for Crank’s interpretation in the manner in 

which 18 U.S.C. § 921(a)(33)(B)(ii) states that “[a] person shall not be considered 

to have been convicted of [a misdemeanor crime of domestic violence] if the 

conviction has been expunged or set aside, or is an offense for which the person has 

been pardoned or has had civil rights restored.” (Emphasis added.) The 

emphasized portion contains two types of situations where a prior conviction does 

not preclude a firearm purchase. The first type of situation involves a conviction

that was “expunged or set aside.” The second type of situation involves an offense

for which an individual was “pardoned or has had [his or her] civil rights restored.” 

¶33 The United States Supreme Court has concluded that the restoration 

of civil rights means that an individual has regained “the rights to vote, hold office, 

and serve on a jury.” Logan, 552 U.S. at 28, 37 (defining “civil rights restored” as 

that term is used in 18 U.S.C. § 921(a)(20)). A pardon is defined as “[t]he act or an 

instance of officially nullifying punishment or other legal consequences of a crime.” 

Pardon, BLACK’S LAW DICTIONARY (11th ed. 2019). Hence, given the plain 

meanings described, the first portion of the emphasized language involves a 

conviction itself, while the second portion involves the effects of a conviction. 

Given the structure of § 921(a)(33)(B)(ii), the plain meanings of “expunged” and 

“set aside,” and Congress’s use of “expungement” in 18 U.S.C. § 3607, we agree 

with the Tenth Circuit’s analysis in Crank that those terms must be interpreted to 

mean the same thing—namely, the state procedure in question must “completely 

remove all effects of the conviction at issue.” See Crank, 539 F.3d at 1245. 
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¶34 Van Oudenhoven argues in his reply brief, for the first time, that 

Congress did not intend for “an expungement [to] be a ‘complete removal’ of the 

effects of a conviction” because, pursuant to the “unless” clause, a “‘complete 

removal’ would ... be incomplete if it retained a firearms prohibition.” “This court 

need not address arguments that are raised for the first time on appeal, or ... raised 

for the first time in the reply brief.” State v. Reese, 2014 WI App 27, ¶14 n.2, 353 

Wis. 2d 266, 844 N.W.2d 396. 

¶35 Even addressing the merits of Van Oudenhoven’s argument, the 

“unless” clause acts as an exception to the first clause. The flaw in 

Van Oudenhoven’s reasoning is apparent when considering pardons and the 

restoration of civil rights. Both of those terms in 18 U.S.C. § 921(a)(33)(B)(ii) 

require the effects of a conviction to be withdrawn, including a prohibition on an 

individual’s right to possess or receive a firearm. If Van Oudenhoven’s 

interpretation were correct, the applicability of the “unless” clause would contradict 

the plain meanings of “pardoned” and “civil rights restored” because the postconviction actions would not restore an individual’s right to possess or carry a 

firearm. 

¶36 Pursuant to 18 U.S.C. § 921(a)(33)(B)(ii), an individual can be 

pardoned under state law—i.e., have his or her punishment or other legal 

consequences of a crime “completely nullified”—and that individual will not be 

prohibited under 18 U.S.C. § 922(g)(9) from receiving or possessing a firearm 

barring the applicability of the “unless” clause. See § 922(g)(9). Similarly, an 

individual can have his or her civil rights restored under state law and not be 

prohibited under § 922(g)(9) from receiving or possessing a firearm. As noted 

above, “civil rights” in this context refers to the restoration of the right to vote, to 

hold office, and to serve on juries. See Logan, 552 U.S. at 28. Barring the 
No. 2023AP70-FT

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applicability of the “unless” clause, “[i]f these are restored, then a conviction does 

not carry federal firearms disabilities.”17 Buchmeier v. United States, 581 F.3d 561, 

564 (7th Cir. 2009). 

¶37 An individual can have his or her conviction expunged or set aside 

under state law and not be prohibited under 18 U.S.C. § 922(g)(9) from receiving 

or possessing a firearm unless expressly provided otherwise. In other words, the 

terms expunged, set aside, pardoned, and restoration of civil rights all, by definition, 

require state action that removes the prohibition on an individual from possessing 

or receiving a firearm under federal law. Any of those state procedures would 

become incomplete if they contained a prohibition on an individual from possessing 

or receiving a firearm under federal law. The “unless” clause does not alter the plain 

 

17

 For example, in Wisconsin, the restoration of civil rights following the completion of a 

felony sentence restores the right to vote and to serve on juries. See WIS. STAT. § 304.078; Moran 

v. DOJ, 2019 WI App 38, ¶38 & n.13, 388 Wis. 2d 193, 932 N.W.2d 430 (stating that restoration 

of civil rights does not include the ability to hold public office). However, the restoration of civil 

rights pursuant to Wisconsin law does not lift the restriction on possessing or carrying firearms. 

See WIS. STAT. § 941.29(1m). Thus, assuming for purposes of this example that civil rights 

restoration under Wisconsin law meets the definition of civil rights restoration provided in 18 

U.S.C. § 921(a)(33)(B)(ii), an individual who completes his or her felony sentence has had his or 

her civil rights restored, however, the “unless” clause still bars the defendant from possessing or 

carrying firearms. See also 78 Wis. Op. Att’y Gen. 22-23 (1989) (concluding that a pardon under 

Wisconsin law does not contain a firearm prohibition unless otherwise stated). 
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meanings in the first clause, and Van Oudenhoven’s interpretation would strip those 

terms of their plain meanings.18 

B. Wisconsin expungement

¶38 Wisconsin’s expungement law 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). WISCONSIN STAT. § 973.015(1m) governs expungement in 

Wisconsin and states, in relevant part:

[W]hen a person is under the age of 25 at the time of the 

commission of an offense for which the person has been 

found guilty in a court for violation of a law for which the 

maximum period of imprisonment is 6 years or less, the 

court may order at the time of sentencing that the record be 

expunged upon successful completion of the sentence if the 

court determines the person will benefit and society will not

be harmed by this disposition.... 

 

18

 Some jurisdictions have held that the “unless” clause is a “notice” or 

“anti-mousetrapping” provision, meaning that “a state may not employ language in discharging” a 

former offender “into the misapprehension” that his or her “rights have been restored to a degree 

that will permit him [or her] to possess firearms.” See United States v. Erwin, 902 F.2d 510, 512-13 

(7th Cir. 1990) (interpreting the “unless” clause in 18 U.S.C. § 921(a)(2)). Under this reasoning, 

“[e]ven if a state deems a person ‘convicted’ for purposes of its domestic law, if it sends a document 

that seems to restore all civil rights the conviction does not count for federal purposes unless the 

document warns the person about a lingering firearms disability.” Buchmeier v. United States, 

581 F.3d 561, 566 (7th Cir. 2009). 

To the extent that Van Oudenhoven argues that the circuit court’s order expunging his 

misdemeanor conviction misled him to believe that his conviction was completely removed as if 

there had been no judgment, we disagree. The court’s order simply stated what WIS. STAT.

§ 973.015 states; that is, the records of his misdemeanor conviction were removed. Further, 

Van Oudenhoven does not contend that he had his civil rights restored—he was convicted of a 

misdemeanor, not a felony, and could not have had his civil rights revoked to begin with. 
No. 2023AP70-FT

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(emphasis added); see also Braunschweig, 384 Wis. 2d 742, ¶19. “[W]hen 

expunction is ordered, the clerk of court seals the case and destroys the court 

records.” Braunschweig, 384 Wis. 2d 742, ¶19. 

¶39 Our state supreme court recently articulated in Braunschweig that, 

unlike vacatur, see WIS. STAT. § 973.015(2m),19 which “removes the fact of 

conviction” and acts as if “there had been no judgment,” Wisconsin’s expungement 

of a conviction merely deletes the evidence of the underlying conviction from court 

records” and “does not invalidate the conviction,” Braunschweig, 384 Wis. 2d 742, 

¶¶21-22 (emphasis added; citation omitted). In other words, § 973.015 permits 

removing a conviction from a person’s criminal court record, see Expungement of 

Record, BLACK’S LAW DICTIONARY (11th ed. 2019), but it does not completely 

remove the effects of a conviction. Thus, “a conviction, even though expunged, 

remains ‘an unvacated adjudication of guilt.’” Braunschweig, 384 Wis. 2d 742, 

¶¶18, 25 (citing the definition of “conviction” in WIS. STAT. § 340.01(9r)). 

¶40 Furthermore, WIS. STAT. § 973.015 does not prevent Wisconsin’s 

executive branch from “maintaining case information” which “may assist [the 

branch] in identifying suspects, determining whether a suspect might present a 

threat to officer safety, investigating and solving similar crimes, anticipating and 

disrupting future criminal actions, [and] informing decisions about arrest or pressing 

charges.” Braunschweig, 384 Wis. 2d 742, ¶28 (quoting State v. Leitner, 2002 WI 

77, ¶40, 253 Wis. 2d 449, 646 N.W.2d 341). Applying the Wisconsin expungement 

statute, the court in Braunschweig held that an expunged second offense for 

 

19

 WISCONSIN STAT. § 973.015(2m) is applicable only to a conviction for an individual 

who “was a victim of trafficking for the purposes of a commercial sex act.” Id. 
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operating while intoxicated constitutes a prior conviction under WIS. STAT.

§ 343.307(1). Braunschweig, 384 Wis. 2d 742, ¶2. 

¶41 Faced with a similar expungement law, the United States Court of 

Appeals for the Ninth Circuit held that an expungement under California law did 

not satisfy the meaning of “expunged” in 18 U.S.C. § 921(a)(33)(B)(ii). 

See Jennings, 511 F.3d at 896. In Jennings, an FFL sought to renew his license. 

The ATF denied his application after concluding that his expungement for a 

misdemeanor domestic assault in California still constituted a conviction. Id.; see 

also 18 U.S.C. § 923(d)(1)(B) (prohibiting a prospective firearm seller from 

becoming an FFL if the seller is prohibited from transporting, shipping, or receiving 

firearms under 18 U.S.C. § 922(g)). 

¶42 In rejecting the FFL’s argument that his conviction was “expunged” 

under 18 U.S.C. § 921(a)(33)(B)(ii), the court articulated that expungement under 

California law did “not render the conviction a legal nullity. Instead, it provides 

that ... the defendant is ‘released from all penalties and disabilities resulting from 

the offense.’” Jennings, 511 F.3d at 898 (citation omitted). According to the court, 

the expungement law still requires the ex-offender to disclose the conviction “in any 

questionnaire or application for public office [or] for licensure by any state or local 

agency.” Id. at 898-99 (alteration in original; citation omitted). The court 

concluded that the expungement law did not meet the definition of “expungement” 

for purposes of § 921(a)(33)(B)(ii), and the FFL was properly denied license 

renewal. Jennings, 511 F.3d at 899. 

¶43 Like California’s expungement law analyzed in Jennings, an 

expungement under Wisconsin law does not “expunge[] or set aside” a conviction 

as those terms are used in 18 U.S.C. § 921(a)(33)(B)(ii) because the statute merely 
No. 2023AP70-FT

22

removes evidence of the conviction from court files. This conclusion is evident in 

the circuit court’s order granting Van Oudenhoven’s expungement petition, wherein 

the court instructed the clerk of court “to expunge the court’s record of the 

conviction.” Moreover, the executive branch is permitted to access those records to 

determine, among other things, whether an individual is allowed to purchase a 

handgun in Wisconsin. See WIS. ADMIN. CODE §§ Jus 10.06(2), 10.03(11).

¶44 It follows, then, that Van Oudenhoven’s Wisconsin expungement did 

not “completely remove all effects” of his misdemeanor conviction or “render the 

conviction a legal nullity.” See Crank, 539 F.3d at 1245; Jennings, 511 F.3d at 898 

(citation omitted). Van Oudenhoven’s conviction remains an “unvacated 

adjudication of guilt,” see WIS. STAT. § 340.01(9r), and, accordingly, the DOJ was 

able to access his records and deny his application to purchase a handgun in 

Wisconsin. In short, the DOJ did not erroneously interpret WIS. STAT. § 973.015 or 

18 U.S.C. § 921(a)(33)(B)(ii). 

CONCLUSION

¶45 The DOJ is authorized by the State of Wisconsin to determine whether 

an individual is prohibited from purchasing a handgun in Wisconsin. Similarly, the 

DOJ is authorized by the federal government to determine whether an individual is 

prohibited from purchasing a firearm in Wisconsin. Under this latter authorization, 

the DOJ was permitted to deny Van Oudenhoven’s handgun purchase because the 

“receipt of a firearm by [Van Oudenhoven] would violate 18 U.S.C. [§ ]922,” 

despite the fact that his misdemeanor conviction was expunged under Wisconsin 

law. See 28 C.F.R. § 25.6(g)(2). Consistent with the meaning of “expunged or set 

aside” in 18 U.S.C. § 921(a)(33)(B)(ii) and the effect of Wisconsin expungement 

espoused in Braunschweig, Van Oudenhoven’s conviction was not completely 
No. 2023AP70-FT

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removed of all effects and remains valid for purposes of denying him permission to 

purchase a firearm in Wisconsin under federal law. We therefore affirm the circuit 

court’s decision upholding the DOJ’s decision to deny Van Oudenhoven’s purchase. 

By the Court.—Order affirmed.