Posted: 1/11/2009 2:57:56 PM EDT
| I was wondering where you guys stand on the situation in West Allis:the open carry case |
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sounds like there are a couple of interesting cases going on
https://www.milwaukeemagazine.com/insider/default.asp?NewMessageID=24325 Gonzalez - a soft-spoken, 21-year-old, unemployed college graduate - has long hair, a pencil-thin mustache and a penchant for carrying guns. On May 14, he walked into a West Milwaukee Menards with a shiny, silver Taurus 9 mm semiautomatic handgun strapped to his hip. That didn't go over well. Gonzalez was stopped by a store assistant manager and asked to leave. In the parking lot, he was confronted by the police and, after refusing to answer any questions, arrested for disorderly conduct. Gonzalez was claiming his rights, having researched the law and concluded that open carry was legal in Wisconsin, his brother Adan told the police. The officers scoffed at this, saying Gonzalez was "sorely mistaken." But was he? While open carry is illegal in the city of Milwaukee, West Milwaukee has no specific ordinance barring it. Moreover, the State Statute of Local Regulation of Firearms (66.0409) says local ordinances cannot be any more "stringent" than state laws. And state laws are horribly ambiguous on this point. Section 25 of the First Amendment of the State Constitution reads, "It logically and necessarily follows that the individual's interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations [private property and privately owned businesses]." Since the issue has never been addressed by the state's Supreme Court, the meaning of this clause is open to interpretation. The law on carrying a concealed weapon is clear: Wisconsin and Illinois are the only two states to ban concealed weapons. "If you want to carry a gun in Wisconsin, wear it on your hip," Gov. Jim Doyle declared at a March 2006 press conference. Doyle, a former attorney general, apparently interprets the constitution to allow open carry. Yet it's barred by ordinance in Milwaukee. "We don't need any more guns on the street," says Mayor Tom Barrett. "I don't want this to be the Wild West." Milwaukee District Attorney John Chisholm takes a middle ground. There are no "bright-line rules," he says. If someone openly carrying at any point conceals the weapon, that would be illegal. Laws on the safe transport of weapons could also come into play. Then there's the catch-all of disorderly conduct. The police report describes Gonzalez as argumentative, but would they have arrested him if he had no gun? People who want to open carry "do so at their own risk," Chisholm advises. At the Milwaukee Legislative Reference Bureau, which is called on to explain city ordinances, manager Barry Zalben has for some time been requesting a definitive answer on open carry from the city attorney. "We do think there is a problem with the statute," Zalben says. "If it's not enforceable or invalid, then we ought to repeal it." Meanwhile, the Wisconsin Patriots, a secretive gun advocacy group (whose representatives declined to be interviewed), reportedly have been gathering signatures on a petition demanding the right to open carry; its Web site claims the petition has been sent to the state attorney general and various county officials. As for Gonzalez, he's still certain the law backs him and plans to start packing heat again - once the police give him back his gun. or there's this case http://www.bootsandsabers.com/index.php/weblog/permalink/open_carry_in_court/ If someone disagreed with you about an article or story you published and then complained to the police who came into your business and arrested you for disorderly conduct, would that incident be newsworthy? What if the police arrested you for disorderly conduct while you were exercising any other constitutionally protected right because someone did not want you to exercise your right? Would you want to tell the people of Wisconsin how fragile it is to exercise their rights? Once arrested, do you think an employer or all your friends and neighbors would understand or would some of them want to maintain more distance with you? Unfortunately, being arrested is the same thing as being found guilty to many people in the court of public opinion. The police don’t arrest innocent people just for exercising a constitutionally protected right after all. That would be outrageous. Or do they? Please come (or send a reporter) to the West Allis City Courthouse on Tuesday December 16th at 8 am when this question will be answered in court. On August 22, Brad Krause was planting trees in his yard, at least until police stormed his residence and arrested him. It turns out they received a call from a man who said he didn’t appreciate that Brad carried a gun, and wanted something done about it. The West Allis police department sent two squads to investigate, and found Brad in his yard, minding his own business planting trees. From behind him, police rushed him, yelling, “Don’t move!” while bearing down on him with their weapons drawn. They shortly discovered Brad had no criminal record and was lawfully openly carrying on his own property, but instead of releasing him and returning his weapon, they tried to figure out how to arrest him. A call to the supervising lieutenant provided the answer: claim his action of carrying a weapon is disorderly conduct, and haul him down to the station. His firearm was taken away from him without a receipt, and it has not been returned. The police have effectively banned his exercise of his right by disarming him. The fact is that Wis. Stat. § 941.23 does not ban or prohibit the lawful carrying of firearms by citizens. By enacting the law, the legislature intended to force citizens to openly carry their firearms while in public, which is what Mr. Krause was lawfully doing (additionally, he was on his own property). Mr. Krause is self employed as a property manager and this action by the City of West Allis has cost him long term business relationships. The police had him standing in handcuffs on his own property for 45 minutes with squad cars parked in front of his residence while they tried to figure out a way to arrest him. Fortunately, Mr. Krause had taken a friends advice and he had a voice recorder with him and the entire incident was recorded and it has been transcribed. Civil rights are very important – all of them – which is why they are protected from governmental actions just like this. The media would be all over this story if a voter had been wrongly arrested while waiting in line to vote, or a worshipper had been arrested while attempting to enter their place of worship, or a reporter was arrested while writing an article. The Wisconsin Supreme Court has said an otherwise reasonable exercise of police power cannot be invoked in a way that “eviscerates,” “destroys,” “frustrates,” or “nullifies” the constitutional right to bear arms, yet that is exactly what is being done by law enforcement departments all over Wisconsin today. In Wisconsin, constitutional rights do not expand the police power; they restrict the police power. See Buse v. Smith, 74 Wis. 2d 550, 564, 247 N.W.2d 141 (1976); see also Robert Dowlut & Janet A. Knoop, State Constitutions and The Right to Keep and Bear Arms, 7 Okla. City U. L. Rev 177, 185 (1982) (describing the general application of this principle).That is why this is such an important matter and I am asking for you to publically expose this unlawful use of police power. |
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For someone who lives in West Allis, I am surprised that I did not know that EITHER of these cases (two from my reading, the Menards then the property manager?) were located here.
From the case, it seems that the West Allis city attorney's office is taking the lead on prosecuting both? |
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My understanding is that the statute, while explicit on allowing "open carry" to be legal, is vague on what constitutes concealment (and thus a breach). As such this allows for a built in gray area for anti-gun DA's to hustle with "disorderly conduct" charges.
*Note: I am not an LEO, but I do work within the legal area. |
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My understanding is that the statute, while explicit on allowing "open carry" to be legal, is vague on what constitutes concealment (and thus a breach). As such this allows for a built in gray area for anti-gun DA's to hustle with "disorderly conduct" charges. *Note: I am not an LEO, but I do work within the legal area. Nope... the statute mentions NOTHING about open carry. Once upon a time if it as not banned it was allowed..... No longer is that the case. We are drifting tword Unless it is allowed , it is banned, the DC statute is one of the biggest reasons of that. It allows the police pretty much unlimited Discretion in what is "disorderly" and while it is a nice notion that the courts will reign it in..... Not so much, My experiance with the courts has been everyone pushes you to plea, And if you plea , the cop is never proved wrong , and even if you fight it ...... Well when was the last time you heard of a cop losing his job for a bunch of bad arrests? |
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Alot of times there is more to the story than what you read in the article. To be perfectly honest it sounds like he went out purposely trying to attract attention...
If he truly wants to carry a firearm for protection why doesn't he just conceal carry? They'll never know and if he gets caught it's only a misdemeanor, it's not a crime. |
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Alot of times there is more to the story than what you read in the article. To be perfectly honest it sounds like he went out purposely trying to attract attention... If he truly wants to carry a firearm for protection why doesn't he just conceal carry? They'll never know and if he gets caught it's only a misdemeanor, it's not a crime. Bottom line: Both cases hold promise for the pro-gun movement in Wisconsin if taken to any conclusion. If found innocent, we have lawful open carry without permits. If found guilty, we have a public record that would allow for satisfaction of one of the Hamdan criteria to CCW, meaning that one need only to prove that their need to CCW was 1) without an unlawful purpose, and 2) the need outweighs the state's "police power" to utilize Article 1 Sec 25 as an afirmative defense to a 941.23 arrest. On the latter point, as long as you aren't in the middle of a drug deal or bank robbery, you're okay as far as the "unlawful purpose" clause... leaving only the individual's need to outweigh the police power of 941.23 enforcement. So we either get the Hamdan criteria down to a judgement call on your "need" to use a weapon (not great, but better than now) or lawful OC without a permit system. No matter what happens, it's a win/win for the good guys, and a lose/lose for those opposed to the RKBA. |
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Well since federal law says you have to allow a way to carry, and WI bans CCW, that means open carry is legal. The problem is that most people dont know that (including probably 95% of LEO's).
If you want to read the full details of the west allis case (its a really long read at 24 pages), the whole thing is here: http://opencarry.mywowbb.com/forum57/10543-1.html Some details are left out since the case is still pending and he was advised not to post them. |
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Well since federal law says you have to allow a way to carry, and WI bans CCW, that means open carry is legal. The problem is that most people dont know that (including probably 95% of LEO's). If you want to read the full details of the west allis case (its a really long read at 24 pages), the whole thing is here: http://opencarry.mywowbb.com/forum57/10543-1.html Some details are left out since the case is still pending and he was advised not to post them. Where does Federal law state that? |
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My understanding is that the statute, while explicit on allowing "open carry" to be legal, is vague on what constitutes concealment (and thus a breach). As such this allows for a built in gray area for anti-gun DA's to hustle with "disorderly conduct" charges. *Note: I am not an LEO, but I do work within the legal area. Nope... the statute mentions NOTHING about open carry. Once upon a time if it as not banned it was allowed..... No longer is that the case. We are drifting tword Unless it is allowed , it is banned, the DC statute is one of the biggest reasons of that. It allows the police pretty much unlimited Discretion in what is "disorderly" and while it is a nice notion that the courts will reign it in..... Not so much, My experiance with the courts has been everyone pushes you to plea, And if you plea , the cop is never proved wrong , and even if you fight it ...... Well when was the last time you heard of a cop losing his job for a bunch of bad arrests? The statute as interpreted by our past AG's (I have not heard anything on Van Hollen's position) has explicitly allowed open carry. But they try to kill you in the details after making that admission... |
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The constitution actually =D
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.
That means if they specifically ban concealed carry, they have to allow open carry. Likewise if they ban open carry, they have to allow concealed carry. |
Illegal CCW is a misdemeanor. Not that I do this or advocate breaking the law. 
In all honesty other than us lacking CCW we're on par with the best pro-gun states. No permits, no restrictions of any kind other than Federal ones on NFA and our 2 day waiting period for handguns. "While open carry is illegal in the city of Milwaukee" What a crock of shit. So basically someone should go open carry in downtown Milwaukee until they get arrested and then sue the state since the City of Milwaukee is clearly in violation of the law. |
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http://www.legis.state.wi.us/lrb/pubs/wb/06wb6.pdf
CCW in Wisconsin is a class A misdemeanor: that is no joke. Class A Misdemeanor The penalty for a Class A misdemeanor may include a fine up to $10,000, or imprisonment for up to 9 months, or both; however, for a repeat offender, the term of imprisonment may increase up to 2 years. http://www.vanwagnerwood.com/CM/Custom/misdemeanor.asp Now, unless you enjoy paying attorney fees even if the DA drops the suit, you're going to be in a world of pain. |
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while the WI state constitution may mirror the US Constitution in protecting the Second Ammendment, this has not been interpreted to mean that we can carry loaded firearm whenever we want. While it is very true that a smaller municipality SHALL NOT impose ordinances that are more strict than state law, THERE IS NO STATE LAW THAT SPECIFICALLY ALLOWS CARRYING OF A LOADED FIRARM ON YOUR PERSON EXCEPT FOR HUNTING OR LE. therefore, municipalities are NOT in violation by imposing their own ordinances.
i moved here from MI and hope wholeheartedly that this leads to CCW licensing or at least a bright line rule on the subject. |
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Alot of times there is more to the story than what you read in the article. To be perfectly honest it sounds like he went out purposely trying to attract attention... If he truly wants to carry a firearm for protection why doesn't he just conceal carry? They'll never know and if he gets caught it's only a misdemeanor, it's not a crime. LOL... umm, a misdemeanor is a crime my friend. |
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while the WI state constitution may mirror the US Constitution in protecting the Second Ammendment, this has not been interpreted to mean that we can carry loaded firearm whenever we want. State v Hamdan (2003):
The supreme court held that not withstanding Article 1 chapter 25 the state has the authority to regulate the manner of carry of firearms therefore the concelaed carry prohibition statute 941.23 was constitutional. The Court also said there were two manners of carry, visible and hidden. The court also declared that if the state intends to prosecute against one manner of carry it must provide for a resonable alternative or yield to the ammendment. The court said that if a person is carrying a firearm for a lawful purpose the burden is on the state to prove it was carried for an unlawful (criminal) purpose. Note: This would tend to "shoot down" the disorderly conduct theory. |
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while the WI state constitution may mirror the US Constitution in protecting the Second Ammendment, this has not been interpreted to mean that we can carry loaded firearm whenever we want. While it is very true that a smaller municipality SHALL NOT impose ordinances that are more strict than state law, THERE IS NO STATE LAW THAT SPECIFICALLY ALLOWS CARRYING OF A LOADED FIRARM ON YOUR PERSON EXCEPT FOR HUNTING OR LE. therefore, municipalities are NOT in violation by imposing their own ordinances. i moved here from MI and hope wholeheartedly that this leads to CCW licensing or at least a bright line rule on the subject. I think you've got things ass-backwards. You do NOT need a statute to specifically allow an activity... laws are generally passed to prohibit activities. For example, we have a statute prohibiting CCW, as do 48 of the 50 states... but 46 have exceptions for permit holders. Vermont and Alaska have no laws banning CCW, therefore CCW (without any permit) is perfectly legal in both states. Neither VT nor AK have a specific law allowing it. There is no WI state law PROHIBITING open carry, therefore, lacking any law banning it, it IS legal here. Until there is a state statute that specifically bans open carry, local units of government cannot enact their own bans, as any such ban will be stricter than state statutes... and that is illegal. And WI cannot enact such a ban without allowing CCW, as there would then be no way left to exercise a state constitutional right. Read the Hamdan decision. |
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The constitution actually =D The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.
That means if they specifically ban concealed carry, they have to allow open carry. Likewise if they ban open carry, they have to allow concealed carry. Don't know what constitution you got that from but it's not the US or the WIS constitution. Neither RKBA amendment is worded that way. |
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while the WI state constitution may mirror the US Constitution in protecting the Second Ammendment, this has not been interpreted to mean that we can carry loaded firearm whenever we want. While it is very true that a smaller municipality SHALL NOT impose ordinances that are more strict than state law, THERE IS NO STATE LAW THAT SPECIFICALLY ALLOWS CARRYING OF A LOADED FIRARM ON YOUR PERSON EXCEPT FOR HUNTING OR LE. therefore, municipalities are NOT in violation by imposing their own ordinances. i moved here from MI and hope wholeheartedly that this leads to CCW licensing or at least a bright line rule on the subject. I think you've got things ass-backwards. You do NOT need a statute to specifically allow an activity... laws are generally passed to prohibit activities. For example, we have a statute prohibiting CCW, as do 48 of the 50 states... but 46 have exceptions for permit holders. Vermont and Alaska have no laws banning CCW, therefore CCW (without any permit) is perfectly legal in both states. Neither VT nor AK have a specific law allowing it. There is no WI state law PROHIBITING open carry, therefore, lacking any law banning it, it IS legal here. Until there is a state statute that specifically bans open carry, local units of government cannot enact their own bans, as any such ban will be stricter than state statutes... and that is illegal. And WI cannot enact such a ban without allowing CCW, as there would then be no way left to exercise a state constitutional right. Read the Hamdan decision. thanks for pointing that out. Most people seem to forget that. |
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while the WI state constitution may mirror the US Constitution in protecting the Second Ammendment, this has not been interpreted to mean that we can carry loaded firearm whenever we want. While it is very true that a smaller municipality SHALL NOT impose ordinances that are more strict than state law, THERE IS NO STATE LAW THAT SPECIFICALLY ALLOWS CARRYING OF A LOADED FIRARM ON YOUR PERSON EXCEPT FOR HUNTING OR LE. therefore, municipalities are NOT in violation by imposing their own ordinances. i moved here from MI and hope wholeheartedly that this leads to CCW licensing or at least a bright line rule on the subject. I think you've got things ass-backwards. You do NOT need a statute to specifically allow an activity... laws are generally passed to prohibit activities. For example, we have a statute prohibiting CCW, as do 48 of the 50 states... but 46 have exceptions for permit holders. Vermont and Alaska have no laws banning CCW, therefore CCW (without any permit) is perfectly legal in both states. Neither VT nor AK have a specific law allowing it. There is no WI state law PROHIBITING open carry, therefore, lacking any law banning it, it IS legal here. Until there is a state statute that specifically bans open carry, local units of government cannot enact their own bans, as any such ban will be stricter than state statutes... and that is illegal. And WI cannot enact such a ban without allowing CCW, as there would then be no way left to exercise a state constitutional right. Read the Hamdan decision. thanks for pointing that out. Most people seem to forget that. negative. actually the fact there is no specific law that allows it, means that it is only legal per se and that a smaller municipality may ban it because it not specifically set forth as a legal act by state statute... therefore they are not infringing on or superceding state law. the only reason open carry is "legal" is because theres no state law that prohibits it, not because there is one that allows it. for example, as i stated earlier i moved here from MI. one of the cities i lived in tried to ban CCW within the city limits entirely, including for permit holders. well, that lasted about a hot minute, as MI state statute SPECIFICALLY ALLOWED CCW by permit holders, and therefore the local ordinance was stricter than state law. for a WI example, lets look at the smoking ban in Appleton. there is no state law that grants you the right to smoke inside a public building. therefore, a city can ban it if they wish. just because something isn't illegal doesnt absolutely make it legal. |
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The constitution actually =D The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.
That means if they specifically ban concealed carry, they have to allow open carry. Likewise if they ban open carry, they have to allow concealed carry. Don't know what constitution you got that from but it's not the US or the WIS constitution. Neither RKBA amendment is worded that way. Read the Hamdan decision. I posted the synopsis of it. It is indeed the way it works. |
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while the WI state constitution may mirror the US Constitution in protecting the Second Ammendment, this has not been interpreted to mean that we can carry loaded firearm whenever we want. While it is very true that a smaller municipality SHALL NOT impose ordinances that are more strict than state law, THERE IS NO STATE LAW THAT SPECIFICALLY ALLOWS CARRYING OF A LOADED FIRARM ON YOUR PERSON EXCEPT FOR HUNTING OR LE. therefore, municipalities are NOT in violation by imposing their own ordinances. i moved here from MI and hope wholeheartedly that this leads to CCW licensing or at least a bright line rule on the subject. I think you've got things ass-backwards. You do NOT need a statute to specifically allow an activity... laws are generally passed to prohibit activities. For example, we have a statute prohibiting CCW, as do 48 of the 50 states... but 46 have exceptions for permit holders. Vermont and Alaska have no laws banning CCW, therefore CCW (without any permit) is perfectly legal in both states. Neither VT nor AK have a specific law allowing it. There is no WI state law PROHIBITING open carry, therefore, lacking any law banning it, it IS legal here. Until there is a state statute that specifically bans open carry, local units of government cannot enact their own bans, as any such ban will be stricter than state statutes... and that is illegal. And WI cannot enact such a ban without allowing CCW, as there would then be no way left to exercise a state constitutional right. Read the Hamdan decision. thanks for pointing that out. Most people seem to forget that. negative. actually the fact there is no specific law that allows it, means that it is only legal per se and that a smaller municipality may ban it because it not specifically set forth as a legal act by state statute... therefore they are not infringing on or superceding state law. the only reason open carry is "legal" is because theres no state law that prohibits it, not because there is one that allows it. for example, as i stated earlier i moved here from MI. one of the cities i lived in tried to ban CCW within the city limits entirely, including for permit holders. well, that lasted about a hot minute, as MI state statute SPECIFICALLY ALLOWED CCW by permit holders, and therefore the local ordinance was stricter than state law. for a WI example, lets look at the smoking ban in Appleton. there is no state law that grants you the right to smoke inside a public building. therefore, a city can ban it if they wish. just because something isn't illegal doesnt absolutely make it legal. There is no "pre-emption" statute on the books regarding smoking laws/bans. There IS such a statute that specifies that no unit of govt can pass any firearms laws stricter than what the state has. That's a big differance, so your WI example doesn't work. In MI (and 47 other states) there is a law on the books that says CCW is illegal. But rather than a specific and seperate statute allowing CCW, those laws have "exceptions" written into them for LE and holders of CCW permits. Those exceptions wouldn't be needed if the law banning CCW wasn't there in the first place (like VT). Only Alaska has a seperate and specific law saying CCW is legal, because Alaska issues CCW permits, but doesn't require one to CCW (they issue permits to residents, so those residents who want one, can have reciprocity in states like MI/KS/CO/FL that honor only resident out-of-state permits). For open carry to be illegal on it's face, there must be a statute saying so, just as CCW is illegal because there is a statute saying so. Right now, there isn't a statue on carrying other than the one banning "concealment" (and carrying in certain places)... but LE has been using the "catch-all" of disorderly conduct to quash open carry, and the fear of such LE "harrassment" is the main reason open carrying in this state isn't more prevalant. Another reason open carry isn't more prevalant in WI is because open carry is a rarity in most of WI, and most people do believe it's illegal. "Social norms" say that only "paranoid nutcases" walk around with a gun on their hip. Nobody who knows it is legal wants to attract LE harrassment and public attention to themselves by doing so. That's why the West Allis case is so important. It'll expose to the general public that open carry in WI is not prohibited specifically by law, and IF open carry becomes more common (I myself don't think it'll happen, regardless the outcome in West Allis) some sheeple will be aghast, and clamor for a law banning it. The WI Supreme Court has already ruled, in Hamdan, on the constitutionality of carrying of firearms in WI ("The gist of the offense is the concealment"). That ruling, which affirmed open carry to be legal, would seem to prevent any open carry bans from being "officially" put on the books. If the case in West Allis goes favorably, the "catch-all" of DC won't be able to be used by LE to prevent open carry. |
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riceBB,
You also seem to be forgetting that the WI Constitution reads: Article 1, Section 25
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. I'd suggest you read the annotations and their referring cases, since the latter define WI Supreme Court opinion on the issue. I have been fortunate to attend all three oral arguments in the cases cited, and the WISC's opinion is pretty clear: WI residents have a right to bear arms, and while CCW is not permitted, the right cannot be rendered illusory. This leaves us with open carry "for all lawful purposes", and any local ordinance to the contrary would be a prima facie violation of the WI Constitution. |