Posted: 7/25/2012 1:31:56 PM EDT
| Case law not allowed in jury instruction.. Found not guilty of Concealed Carry for Open Carrying a handgun in a car without a CCW license. |
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So that whole "above the window line" BS is effectively out the window now? It only means that the judge in this case did not recognize it. It was not part of the jury instruction. My understanding is that someone would have to be found guilty and then appeal to the WI Supreme Court to establish new case law. http://www.jsonline.com/news/crime/jury-rules-in-favor-of-gunrights-activist-kc685iv-163622786.html |
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Case law not allowed in jury instruction.. Found not guilty of Concealed Carry for Open Carrying a handgun in a car without a CCW license. From what I've read about the decision and the case it sounds like the DA and MPD were trying to argue that her gun was concealed only because her jacket was covering it, not because it was below the window line. I suspect the decision to NOT allow case law was an intentional one. I don't think they want that over turned on their watch. The officers best argument was that she new to look for a weapon because of an NRA hat in the back window and since she didn't see one upon initial inspection, Krysta must have had it covered by her jacket and then uncovered it. In my opinion is was a huge debacle on the part of MPD and a poor attempt on their part to make a point against concealed carry. MPD is very publicly anti conceal carry and anti gun, and for that reason alone I hope her next lawsuit bankrupts them. |
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So that whole "above the window line" BS is effectively out the window now? It only means that the judge in this case did not recognize it. It was not part of the jury instruction. My understanding is that someone would have to be found guilty and then appeal to the WI Supreme Court to establish new case law. http://www.jsonline.com/news/crime/jury-rules-in-favor-of-gunrights-activist-kc685iv-163622786.html What the hell?..........Soooooooo judges and jury can just ignore case law precedence if they feel like it? Bummer, guess this means someone else will have to get arrested down the road, be found guilty, and appeal it up. I think I'll be keeping it above the windowline until this happens. Case law is clear, even if the judge and jury in this case didn't recognize it, it looks like it turned out well for Sutterfield. |
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Mooraka, the case law should not be pertinent anyways, because the relavant laws have been changed by the legislature. New case law is now needed, and that should be recognized by any judge. It will, however, not be. The relevant law which is WI Statute 941.23 was not changed besides carving out an exception for licensees. The case law is listed at the end of this Statute.. https://docs.legis.wisconsin.gov/statutes/statutes/941/III/23 |
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From what I've read about the decision and the case it sounds like the DA and MPD were trying to argue that her gun was concealed only because her jacket was covering it, not because it was below the window line.. That is true but the prosecutor also wanted jury instruction to include the case law that way she could still be stuck even if her coat did not "hide" the handgun. |
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From what I've read about the decision and the case it sounds like the DA and MPD were trying to argue that her gun was concealed only because her jacket was covering it, not because it was below the window line.. That is true but the prosecutor also wanted jury instruction to include the case law that way she could still be stuck even if her coat did not "hide" the handgun. I'm no law scholar by any means, when I read that it excluded I assumed it was by the DA. Didn't realize the defense had the capability to do so. |
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From what I've read about the decision and the case it sounds like the DA and MPD were trying to argue that her gun was concealed only because her jacket was covering it, not because it was below the window line.. That is true but the prosecutor also wanted jury instruction to include the case law that way she could still be stuck even if her coat did not "hide" the handgun. I'm no law scholar by any means, when I read that it excluded I assumed it was by the DA. Didn't realize the defense had the capability to do so. I am not following you...?? The DA IS the prosecutor. |
| On WCI's facebook page, lots of people are calling BS on the female cop for testifying that seeing things like NRA hats and the like are cause for suspicion, that they had training that way. Many cops are saying they've never heard of that, so did she (female cop) commit perjury? |
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I am assuming that since the DA wanted the case law included in the jury instruction, and it was NOT included in the jury instruction, it was the defense that successfully had it excluded from the jury instruction.
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From what I've read about the decision and the case it sounds like the DA and MPD were trying to argue that her gun was concealed only because her jacket was covering it, not because it was below the window line.. That is true but the prosecutor also wanted jury instruction to include the case law that way she could still be stuck even if her coat did not "hide" the handgun. I'm no law scholar by any means, when I read that it excluded I assumed it was by the DA. Didn't realize the defense had the capability to do so. I am not following you...?? The DA IS the prosecutor. |
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I am assuming that since the DA wanted the case law included in the jury instruction, and it was NOT included in the jury instruction, it was the defense that successfully had it excluded from the jury instruction. The way it was reported, the judge simply made the decision that it was not to be included without any action by the defense. The DA had made a motion to add Walls ( saying that if it's not visible from outside the car but in the immediate vicinity and simply casually looking, it's concealed) to the jury instruction as it is not currently in there and the judge did not allow it. It would be interesting to see the actual jury instruction. For those who do not know, it is a pre-printed document not something made up by the judge on the spot. 941.23 Carrying concealed weapon....
A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under this section. State v. Walls |
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Wow. I am SO glad I don't live down that way anymore. WTH is this!?:
"Benitez testified that her training told her that the presence of NRA gear makes it more likely the person might have a gun." So, when a cop sees a a pro-choice bumper sticker on a car are they instructed that it is more likely the person is performing abortions in the backseat? We can't be too far away from the time when the left-wing activist police officers start pulling people over who have a Smith & Wesson bumper sticker or - gasp! - a Michael Savage bumper sticker because they "have been trained to know that person is more likely to be a terrorist". Is it possible to file a harassment suit against the MPD or a civil suit against the offending officers? To me, this is a clear case of some anti-gun police trying to make an example of someone. Luckily, they picked the wrong person to try to mess with. CM |
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On WCI's facebook page, lots of people are calling BS on the female cop for testifying that seeing things like NRA hats and the like are cause for suspicion, that they had training that way. Many cops are saying they've never heard of that, so did she (female cop) commit perjury? I can say that I have heard that before, but its been a while. Basically indicators that a person owns firearms and may be present as a safety indicator. I doubt she committed perjury. |
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Ed, I respectfully disagree. When the legislation's author has stated publicly that the intent of the law as written was to make existing case law (I think Walls, can't remember) obsolete, then any decent judge should take that into account. I realize that WI is bizarre in how the case law is annotated into the statutes, but it is still case law; if the statutes change to make that case law obsolete, then it is exactly that.
I will preemptively agree with you that she (Galloway) should have written more plain language to that effect into the law, but seeing as the judiciary is supposed to interpret laws based on the intent of the authors, I don't know how you find a more plain example than this. |
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Ed, I respectfully disagree. When the legislation's author has stated publicly that the intent of the law as written was to make existing case law (I think Walls, can't remember) obsolete, then any decent judge should take that into account. I realize that WI is bizarre in how the case law is annotated into the statutes, but it is still case law; if the statutes change to make that case law obsolete, then it is exactly that. I will preemptively agree with you that she (Galloway) should have written more plain language to that effect into the law, but seeing as the judiciary is supposed to interpret laws based on the intent of the authors, I don't know how you find a more plain example than this. Although lrb 2007 (constitutional carry bill) repealed 941.23, the final version which became Act 35 left it intact with only an exception for a licensee. No definitions were changed. Concealed was not defined in order to clear up Walls. Her personal intention is irrelevant if the language never made it into the Statute. Not only did she not write any plain language, no language at all was written into 941.23 to even remotely suggest that Walls does not apply. They cleared up disorderly conduct with plain language and they consciously avoided doing so with Act 35 and Act 51. The change to 167.31 simply removed the restriction of having loaded/unloaded/uncased hand guns from being "in" or "on" a vehicle. It gives no further authority including an exception to Walls. Having a loaded handgun "in" a vehicle is legal because it is not prohibited. "Hiding" that handgun is still prohibited and case law from Walls says below the window line is hidden. In my opinion Walls is garbage but the LRB placed it in the connotations for the Statute so the AG must still support it. Too bad our "friends" in the legislature are supporting it by default... 
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Quoted: Quoted: Quoted: So that whole "above the window line" BS is effectively out the window now? It only means that the judge in this case did not recognize it. It was not part of the jury instruction. My understanding is that someone would have to be found guilty and then appeal to the WI Supreme Court to establish new case law. http://www.jsonline.com/news/crime/jury-rules-in-favor-of-gunrights-activist-kc685iv-163622786.html What the hell?..........Soooooooo judges and jury can just ignore case law precedence if they feel like it? Bummer, guess this means someone else will have to get arrested down the road, be found guilty, and appeal it up. I think I'll be keeping it above the windowline until this happens. Case law is clear, even if the judge and jury in this case didn't recognize it, it looks like it turned out well for Sutterfield. The jury may have been saying "fuck the law, not guilty". Or the prosecution may have deliberately failed the case in order to maintain the greater scope of the anti-gun agenda. MPD and the local politicos are like that. Also note, the popo has no problem using "in plain sight" for noticing object X on the seat and justifying a full car-destroying search with it. Maybe that practice is finally backfiring on them.
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The jury may have been saying "fuck the law, not guilty". Or the prosecution may have deliberately failed the case in order to maintain the greater scope of the anti-gun agenda. MPD and the local politicos are like that. Also note, the popo has no problem using "in plain sight" for noticing object X on the seat and justifying a full car-destroying search with it. Maybe that practice is finally backfiring on them. Are you implying that they threw this case to help their anti-gun cause? I don't get it. Seems in this case the officer claimed she saw the holstered firearm the second time she looking in the car. It may have just been a coin flip for the jury to decide if the defendent really had the firearm covered up or the officer just didn't notice it the first time around. I guess they gave the defendant the benefit of the doubt. |
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On WCI's facebook page, lots of people are calling BS on the female cop for testifying that seeing things like NRA hats and the like are cause for suspicion, that they had training that way. Many cops are saying they've never heard of that, so did she (female cop) commit perjury? Perhaps the people calling BS are just those that don't like the police in the first place, so naturally to them it's always the cops fault. Just a thought. |
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The jury may have been saying "fuck the law, not guilty". Or the prosecution may have deliberately failed the case in order to maintain the greater scope of the anti-gun agenda. MPD and the local politicos are like that. Also note, the popo has no problem using "in plain sight" for noticing object X on the seat and justifying a full car-destroying search with it. Maybe that practice is finally backfiring on them. Are you implying that they threw this case to help their anti-gun cause? I don't get it. Seems in this case the officer claimed she saw the holstered firearm the second time she looking in the car. It may have just been a coin flip for the jury to decide if the defendent really had the firearm covered up or the officer just didn't notice it the first time around. I guess they gave the defendant the benefit of the doubt. Which is exactly what they're supposed to do. To find her guilty, evidence must support the charges "Beyond a reasonable doubt". Apparantly there was reasonable doubt to the officer's testimony amongst the jury. |
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Quoted: Quoted: The jury may have been saying "fuck the law, not guilty". Or the prosecution may have deliberately failed the case in order to maintain the greater scope of the anti-gun agenda. MPD and the local politicos are like that. Also note, the popo has no problem using "in plain sight" for noticing object X on the seat and justifying a full car-destroying search with it. Maybe that practice is finally backfiring on them. Are you implying that they threw this case to help their anti-gun cause? I don't get it. Seems in this case the officer claimed she saw the holstered firearm the second time she looking in the car. It may have just been a coin flip for the jury to decide if the defendent really had the firearm covered up or the officer just didn't notice it the first time around. I guess they gave the defendant the benefit of the doubt. Think of it this way. Here are the choices for the anti-gun guys; a) do a bunch of ticketing / arresting / rights violating, get caught at it, and run it through the courts b) do a bunch of ticketing / arresting / rights violating, get caught at it, fold when someone fights but keep doing the same to others that don't. c) do a bunch of ticketing / arresting / rights violating, get caught at it, fight when someone fights back, lose the law completely. lose ability to do a) anymore. This all hinges on the fact that laws do not get thrown out because someone gets declared "not guilty". Laws get thrown out because someone gets convicted, and appeals, and wins. Folding THIS case, keeps THIS case from establishing case law on appeal. Krysta ALREADY WON a lawsuit against the City of Brookfield, likewise, there is a fairly determined gun group backing her. (The same one that ass-farked the City of Madison on the open carry thing at Culvers.) The MPD would be STUPID to go up against that because if they lose, they set the gun grabber agenda back. So, that poses a problem for the DA, he's got to pretend to put up a fight but torpedo the case because those future 100s of convictions he's going to get are gone of the law goes out the window, and he'll be the guy that "stupidly pushed until a judge threw the law out" instead. So, yes, they do pick and choose what to fight for to maintain the status quo. Just like our side does. |
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The jury may have been saying "fuck the law, not guilty". Or the prosecution may have deliberately failed the case in order to maintain the greater scope of the anti-gun agenda. MPD and the local politicos are like that. Also note, the popo has no problem using "in plain sight" for noticing object X on the seat and justifying a full car-destroying search with it. Maybe that practice is finally backfiring on them. Are you implying that they threw this case to help their anti-gun cause? I don't get it. Seems in this case the officer claimed she saw the holstered firearm the second time she looking in the car. It may have just been a coin flip for the jury to decide if the defendent really had the firearm covered up or the officer just didn't notice it the first time around. I guess they gave the defendant the benefit of the doubt. Think of it this way. Here are the choices for the anti-gun guys; a) do a bunch of ticketing / arresting / rights violating, get caught at it, and run it through the courts b) do a bunch of ticketing / arresting / rights violating, get caught at it, fold when someone fights but keep doing the same to others that don't. c) do a bunch of ticketing / arresting / rights violating, get caught at it, fight when someone fights back, lose the law completely. lose ability to do a) anymore. This all hinges on the fact that laws do not get thrown out because someone gets declared "not guilty". Laws get thrown out because someone gets convicted, and appeals, and wins. Folding THIS case, keeps THIS case from establishing case law on appeal. Krysta ALREADY WON a lawsuit against the City of Brookfield, likewise, there is a fairly determined gun group backing her. (The same one that ass-farked the City of Madison on the open carry thing at Culvers.) The MPD would be STUPID to go up against that because if they lose, they set the gun grabber agenda back. So, that poses a problem for the DA, he's got to pretend to put up a fight but torpedo the case because those future 100s of convictions he's going to get are gone of the law goes out the window, and he'll be the guy that "stupidly pushed until a judge threw the law out" instead. So, yes, they do pick and choose what to fight for to maintain the status quo. Just like our side does. I know where you're coming from... but, regardless of what the prosecution did, this case was decided as soon as the judge disallowed the Walls case stuff in the jury instructions. I'd bet that not a single member of that jury ever heard the "above the windowline" requirements for open carry in a vehicle (that's only widely known to us internet junkies  ). If the wording of Act 35 was heard by the jury, and if she was wearing the gun on her hip (as everyone involved agreed she was) , to the common person, this is not concealing it from plain view, and it's reasonable to assume the officer just didn't see it the 1st time she looked. The jury likely also assumed that since Krysta is a certified firearms instructor, she'd know the law and would follow it.
If what you say is true, then it was either the judge who "threw" the case, or the DA and the judge made a closed door deal to not allow jury instructions to include the Walls precedence. I think that if the DA really didn't want to "win", and risk an appeal's overturning of the law, it would've never been prosecuted. |
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Quoted: Quoted: Quoted: Quoted: The jury may have been saying "fuck the law, not guilty". Or the prosecution may have deliberately failed the case in order to maintain the greater scope of the anti-gun agenda. MPD and the local politicos are like that. Also note, the popo has no problem using "in plain sight" for noticing object X on the seat and justifying a full car-destroying search with it. Maybe that practice is finally backfiring on them. Are you implying that they threw this case to help their anti-gun cause? I don't get it. Seems in this case the officer claimed she saw the holstered firearm the second time she looking in the car. It may have just been a coin flip for the jury to decide if the defendent really had the firearm covered up or the officer just didn't notice it the first time around. I guess they gave the defendant the benefit of the doubt. Think of it this way. Here are the choices for the anti-gun guys; a) do a bunch of ticketing / arresting / rights violating, get caught at it, and run it through the courts b) do a bunch of ticketing / arresting / rights violating, get caught at it, fold when someone fights but keep doing the same to others that don't. c) do a bunch of ticketing / arresting / rights violating, get caught at it, fight when someone fights back, lose the law completely. lose ability to do a) anymore. This all hinges on the fact that laws do not get thrown out because someone gets declared "not guilty". Laws get thrown out because someone gets convicted, and appeals, and wins. Folding THIS case, keeps THIS case from establishing case law on appeal. Krysta ALREADY WON a lawsuit against the City of Brookfield, likewise, there is a fairly determined gun group backing her. (The same one that ass-farked the City of Madison on the open carry thing at Culvers.) The MPD would be STUPID to go up against that because if they lose, they set the gun grabber agenda back. So, that poses a problem for the DA, he's got to pretend to put up a fight but torpedo the case because those future 100s of convictions he's going to get are gone of the law goes out the window, and he'll be the guy that "stupidly pushed until a judge threw the law out" instead. So, yes, they do pick and choose what to fight for to maintain the status quo. Just like our side does. I know where you're coming from... but, regardless of what the prosecution did, this case was decided as soon as the judge disallowed the Walls case stuff in the jury instructions. I'd bet that not a single member of that jury ever heard the "above the windowline" requirements for open carry in a vehicle (that's only widely known to us internet junkies ). If the wording of Act 35 was heard by the jury, and if she was wearing the gun on her hip (as everyone involved agreed she was) , to the common person, this is not concealing it from plain view, and it's reasonable to assume the officer just didn't see it the 1st time she looked. The jury likely also assumed that since Krysta is a certified firearms instructor, she'd know the law and would follow it. If what you say is true, then it was either the judge who "threw" the case, or the DA and the judge made a closed door deal to not allow jury instructions to include the Walls precedence. I think that if the DA really didn't want to "win", and risk an appeal's overturning of the law, it would've never been prosecuted. I was speculating, not asserting it was the case. :) It's good that the jury didn't think it was concealing, I agree, it isn't. It obviously isn't because the "plain sight" standard is different where things are; in a car, in a closet, on the street, on a person, etc. In reality, if the standards for on person and in a car were the same, we'd have to mount the holster OUTSIDE the car and stick a hand out a window to draw from the holster.
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