Hunter appeals felon gun ban to state high court
Hartford, Wis. — A Hartford man is asking the Wisconsin Supreme Court to review his case in Washington County where he’s charged with being a felon in possession of a firearm.
Thomas M. Pocian, 44, was convicted of three felonies for writing forged checks in 1986. He was sentenced to three years of probation at the time and paid restitution. Pocian has a clean record since that time.
In 2008, Pocian shot two deer using his father’s gun. Pocian registered the deer properly, according to DNR hunting regulations. The Washington County District Attorney’s office says that at some point the DNR became aware that Pocian was a convicted felon and notified Mark Bensen, district attorney.
DNR Chief Warden Randy Stark said when a person buys a hunting license there’s no system that automatically checks to see if that person has a felony conviction.. However, he said a number of years ago the DNR worked with the Department of
Corrections to do cross-matching to identify felons who bought licenses and subsequently shot deer. Stark said it’s possible this case might be one of those identified, but he didn’t know for sure if the Pocian case was part of that initiative.
Benson eventually charged Pocian with a felony that carries a maximum fine of $25,000 and a maximum 10 years in prison. Pocian pleaded not guilty, and a jury trial was set for May 9, 2011.
On Feb. 28, 2011, Pocian’s attorney, Craig Powell, filed a motion to dismiss the charge on grounds that the law was overly broad and unconstitutional, as applied to his case. On April 29, 2011, Washington County Circuit Court Judge Todd K. Martens denied the motion to dismiss. Powell then appealed the ruling to the state Court of Appeals, District 2.
Pocian argued to the appeals court that Wisconsin’s ban on felons possessing a firearm is unconstitutional. Furthermore, he said the statute should not apply to him because he’s a nonviolent felon and there is no public safety rational for depriving him of the right to keep and bear arms.
On April 11 of this year, the Court of Appeals upheld the ruling of Judge Martens.
“The governmental objective of public safety is an important one, and we hold that the Legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related to this goal,” the court said in its ruling. “… the Legislature has determined that Pocian’s crimes are felonies. As such, Pocian has legislatively lost his right to possess a firearm.”
The court said if Pocian wants to change the law, the proper route is through the Legislature.
After the ruling, Powell said there is a disconnect between the goal of protecting the public and barring a nonviolent offender like Pocian an opportunity to possess a firearm to go hunting nearly 30 years after his conviction.
Powell said asking Gov. Scott Walker for a pardon probably would not be successful because the governor believes those decisions are best left to the courts. Powell added that having the conviction expunged is not an option because it occurred too long ago and, as a result, Pocian has no other options.
The state Attorney General’s office is handling the case on appeal.
Stark said it’s not against the law for a felon to buy a gun deer license, but he cannot possess a gun to shoot a deer. If the DNR gets a report of a felon registering a deer during the gun season, it requires investigation.
“If someone in fact was a felon and registered a deer, one of two things happened,” Stark said. “Either A, you had a felon in possession of a firearm who shouldn’t have and shot a deer, or B, they would have tagged a deer in violation of the group hunting law because all members of the group must be hunting with firearms.”