¶ 13. {concurring). I write separately for three reasons. First, to point out the obvious, there is no crime entitled "disorderly conduct (non-domestic)"; second, to summarize the compelling reasons why perpetrators of domestic violence are denied access to guns; finally, to show that the Bureau of Alcohol, Tobacco, Firearms and Explosives considers the contents of the complaint and not the title or elements of the charge.
¶ 14. Koll was originally charged with two counts, disorderly conduct, in violation of Wis. Stat. § 947.01, and battery, within seventy-two hours of an arrest for domestic abuse, in violation of Wis. Stat. §§ 940.19(1) and 939.621. As part of a plea agreement, both counts were amended to "disorderly conduct (non-domestic in nature)," and the judgment of conviction reflected Koll's conviction of two counts of "disorderly conduct (non-domestic)." I have reviewed the criminal code and have not found such a crime. The judgment of conviction reflects that the two counts violated § 947.01, which does not differentiate between nondomestic and domestic disorderly conduct:
Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.
*761¶ 15. Circuit courts are not empowered to label crimes in an attempt to help a party avoid collateral consequences. It is for the legislature to decide if different types of disorderly conduct should be treated differently. When we considered the statutory scheme involving battery committed by juveniles while in a secure facility we wrote, "[T]he legislature is entitled to recognize different degrees and types of harm and to strike at what it believes 'more urgently needs repression.' "1 State v. Martin, 191 Wis. 2d 646, 658, 530 N.W.2d 420 (Ct. App. 1995). It is elementary that "it is the function of the legislature to prescribe the penalty and the manner of its enforcement; the function of the courts to impose the penalty . . . ." State v. Borrell, 167 Wis. 2d 749, 767, 482 N.W.2d 883 (1992).
¶ 16. When Congress amended the 1968 Gun Control Act to prohibit anyone convicted of a "misdemeanor crime of domestic violence" from possessing a firearm, 18 U.S.C. § 922(g)(9), it did so for a compelling reason: the protection of victims of domestic violence. The sponsor of the amendment, Senator Frank Lautenberg, noted, "There is no question that the presence of a gun dramatically increases the likelihood that domestic violence will escalate into murder. According to one study, for example, in households with a history of battering, the presence of a gun increases the likeli*762hood that a woman will be killed threefold." 142 Cong. Rec. S11227 (Daily ed. Sept. 25, 1996).
¶ 17. In rejecting an equal protection challenge to 18 U.S.C. § 922(g)(9), the 7th Circuit commented, "The rationale for keeping guns out of the hands of those convicted of domestic violence crimes is eminently reasonable." United States v. Lewitzke, 176 F.3d 1022, 1026 (7th Cir. 1999).
¶ 18. The pervasive problem of domestic violence should be well known to every circuit judge who has a criminal calendar. "Intimate partner homicides account for between one-third to one-half of all female homicides. Every year in the United States, between 1000 and 1600 women die at the hands of their male partners, often after a long and escalating pattern of battering." Brief for Brady Center to Prevent Gun Violence, et al. as Amici Curiae Supporting Petitioners, 10 (footnotes omitted), United States v. Hayes, 555 U.S. _, 129 S. Ct. 1079 (2009). "Studies demonstrate that the involvement of a gun during an incident of domestic violence significantly increases the probability— making it twelve times more likely — that the encounter will result in a homicide." Brief for National Network to End Domestic Violence, et al. as Amici Curiae Supporting Petitioners, 5, United States v. Hayes, 555 U.S. _, 129 S. Ct. 1079 (2009). Even if the victim is not killed, he or she is frequently injured if a gun is involved. Id.
¶ 19. Wisconsin is not immune from this violence. In 2006, there were 25,531 incidents of domestic violence in the state. Wisconsin Department of Justice Office of Crime Victim Services, 2006 Domestic Abuse Incident Report (DAIR), 3 (2007) (http://www.doj. state.wi.us/cvs/documents/DAR/2006DAR/2006DAR.pdf, last visited Mar. 11, 2009). "There were 40 domestic homicides in 19 counties in Wisconsin in 2006. The youngest victim was under one year old; the oldest was *76385. Victims were most often females killed in their residence by a family member using a firearm or a knife." Id. at 4.
¶ 20. Preventing convicted domestic violence abusers from arming themselves also protects law enforcement. FBI statistics show that thirty percent of officers assaulted or injured when responding to a call for help were responding to a domestic violence call. Brief for Brady Center to Prevent Gun Violence, et al. as Amici Curiae Supporting Petitioners, 18, United States v. Hayes, 555 U.S. _, 129 S. Ct. 1079 (2009). "A substantial number of police officer deaths result when officers respond to domestic violence incidents. Eighty-one law enforcement officers were killed when responding to domestic disturbance calls from 1996 to 2005 .. .." Id. at 15-16 (footnotes omitted).
¶ 21. In closing, I note that the Bureau of Alcohol, Tobacco, Firearms and Explosives takes the position that it is the contents of the complaint that determines whether the conduct is a misdemeanor domestic violence crime. See Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Misdemeanor Crime Of Domestic Violence Questions And Answers (as of April 28, 1997) ("X was convicted of misdemeanor assault on October 10, 1996. The crime of assault does not make specific mention of domestic violence but the criminal complaint reflects that he assaulted his wife. May X still possess firearms or ammunition? No. X may no longer possess firearms or ammunition.") (http://www.atf.gov/ firearms/domestic/qa.htm, last visited Mar. 11, 2009). Therefore, 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.
The United State Supreme Court has observed:
[I]t is within the power of a legislature to prescribe a rule of general application based upon a state of things which is ordinarily evidence of the ultimate fact sought to be established. "It was obviously the province of the state legislature to provide the nature and extent of the legal presumption to be deduced from a given state of facts, and the creation by law of such presumptions is, after all, but an illustration of the power to classify."
Hawker v. New York, 170 U.S. 189, 197-198 (1898) (citation omitted).